Meuth's Ex'x v. Meuth

• Decision Date: 11 March 1914
• Citation: 157 Ky. 784,164 S.W. 63
• Parties: MEUTH'S EX'X v. MEUTH et al.
• Court: Kentucky Court of Appeals

164 S.W. 63

157 Ky. 784

MEUTH'S EX'X v. MEUTH et al.

Court of Appeals of Kentucky.

March 11, 1914

Appeal from Circuit Court, Henderson County.

Will contest between Andrew Meuth's executrix and Simon Meuth and others. From a verdict and judgment setting aside the will, the executrix appeals. Affirmed.

S. O Heilbronner, Vance & Heilbronner, Montgomery Merritt, and N P. Taylor, all of Henderson, for appellant.

Dorsey & Dorsey, of Henderson, for appellee Charles Meuth. Clay &amp Clay, of Henderson, for appellees Simon Meuth and others.

S. V Dixon and G. Givens Dixon, both of Henderson, for appellees Andrew J. Meuth and another.

MILLER J.

This is an appeal from a verdict and judgment setting aside the will of Andrew Meuth, deceased.

The testator made his will in March, 1908; he added a first codicil thereto in February, 1909, and a second codicil in April, 1911. He died in November, 1911, at the age of 76. Andrew Meuth was born in Germany, and came to America in 1853, when he was 18 years of age. His people in Germany were fairly well to do, and occasionally sent him small sums of money. He was a journeyman wagon maker; and, so far as this record shows, his first work in America was with a Mr. Hoover, in New Albany, Ind. Subsequently he married Madeline Hoover, the daughter of his employer. Later he moved to Louisville, where his oldest child, Charles Hoover, was born, 55 years ago. Andrew Meuth did not prosper in his early years; he had a hard time getting a start in the world. Shortly after the birth of his oldest son, Andrew Meuth went to Texas, leaving his wife and child in Louisville, apparently unprovided for. She returned to her father's home, where their second son, Simon, was born, during his father's absence. During the war between the states, Andrew Meuth enlisted in an Indiana regiment; and, having been injured after a service of three months, he returned to New Albany and began business as a cooper. His father-in-law, Hoover, died in 1861, and upon a division of his estate in 1864 Andrew Meuth received $550 as his wife's share in her father's estate. About five years thereafter, Meuth and his family moved to Mt. Vernon, Ind., where he invested his wife's $550, and such other money as he could gather together, in a house, which he subsequently traded for a 40-acre farm. Subsequently he sold his property in Mt. Vernon, making a profit of $1,000, and later, in 1876, he bought a farm of 233 acres in Henderson county from Dr. Taylor, and known as the "Home Place" in this record. He subsequently bought additional land in Henderson county, whereby he increased his Home Place to 320 acres, in addition to the McCormick farm of 167 acres on the Zion gravel road, about three miles from Henderson, and the Yates tract, containing 27 acres. His first wife, Madeline, died in 1877, leaving six children, the contestants, Charles Meuth, Simon Meuth, Andrew J. Meuth (called "Andy" in the record to distinguish him from his father, the testator). Sebastian Meuth, Mrs. Lizzie Long, and Mrs. Susan Hancock. Andrew Meuth married a second time, but his second wife died shortly thereafter, without issue. In 1883 Andrew Meuth married his third wife, Elenora Trout, of Evansvile, Ind., who survived him, and, as his widow and executrix, is the appellant in this action. By his third wife Andrew Meuth had four children, Oscar, Joseph W., Walter, and Fred J. Meuth. Oscar, however, died before his father. Andrew Meuth left an estate worth between fifty and sixty thousand dollars. By his original will, of March 20, 1908, he disposed of his estate as follows: (1) He devised the Home Place, containing 320 acres, to his wife for life, with remainder to her four sons; (2) to his daughter Susan Hancock he gave 25 acres, with the improvements, to be carved out of the McCormick tract on the Zion gravel road, for life, with remainder to her children; (3) the remainder of the Zion gravel road tract of 167 acres he devised equally to his sons, Charles, Simon, Andrew, Sebastian, and his daughter Lizzie Long, children by his first wife, in fee; (4) he directed his personalty to be sold, and the proceeds divided equally between his wife and all of his children; and (5) he gave the proceeds of an insurance policy for $2,000 to his wife. By the first codicil of February 27, 1909, he gave the Yates tract of 27 acres, which he had acquired since the original will was made, to his daughter Lizzie Long, and his city property, consisting of two houses, which he had likewise bought since the making of the original will, he devised to his wife, for life, with remainder to his six older children, by his first wife. By the second codicil of April 5, 1911, he devised to his younger sons, Joseph, Walter, and Fred, whatever indebtedness he held against them. He also regulated the succession of the Home Place of 320 acres, which he had given to his younger children in remainder, and the city property, which he had given to his older children in remainder, by providing in each case that if any of said children should die without issue, his or her share should go to his or her brothers and sisters of the full blood, in equal proportions, and to the descendants of such as might be dead, leaving issue.

The grounds of contest were three: (1) That Andrew Meuth, the testator, at the times he executed the will and the two codicils did not have sufficient mind and memory to know the natural objects of his bounty and his obligations and duty to them; (2) that he did not know the character and value of his estate, nor did he dispose of same according to a fixed purpose of his own; and (3) that the will and codicils were the result of the undue influence of the testator's wife, Elenora Meuth.

As is usual in cases of this character, the testimony has taken a wide range. We do not, however, consider it necessary to give a minute or detailed account of the testimony of the different witnesses; it is sufficient to give a general outline of the life and character of Andrew Meuth, with some special references to certain acts relied upon by the contestants in support of their claims of his incapacity, and his wife's undue influence over him. A great many witnesses, including his neighbors, the business men of Henderson, bankers, and merchants, unite in saying that Andrew Meuth was not only thrifty and industrious, but was a man of fine business capacity and judgment, an excellent money maker, and not likely to be turned aside from his own judgment by the persuasion of others. The estate he accumulated is strong evidence of his business capacity. On the other hand, the contestants show, principally by their own testimony, many instances of unfilial conduct, rough language, and mistreatment of his first wife and her children, which it is claimed are both competent and sufficient to establish his mental incapacity to recognize his obligations to those children and his duty to them. We will give some of them. On one occasion Andrew Meuth sold his son Simon some wheat, and as Simon did not pay for it promptly, his father sued him and collected a price which Simon claimed was unreasonable and in excess of the contract price. As a consequence Simon and his father did not speak to each other for 11 years thereafter. On another occasion, when the testator was sick, and his son Andy called to see him, the father declined to see him. Again, as many as five witnesses testify to a quarrel between Andy and his father, in which the father told his son Oscar to shoot Andy. At another time the testator said he would never be satisfied until Andy's wife was safely buried six feet under the earth. In 1908, when Elenora, the stepmother, visited Andy and his wife, the latter offered to give her stepmother some roses, whereupon, the stepmother asked that the rose bushes be taken up for her, and this resulted in an estrangement between the two women and a consequent ill feeling between their husbands. There is also testimony tending to show that the stepmother said to some one of the family that Mrs. Hancock had brought disgrace on the family by having a miscarriage, and that this story was carried to the testator, and resulted in such an estrangement between him and his daughter that when her house subsequently burned, her father refused to give her shelter, and she was compelled to live in a tent for some time. It is claimed a similar story was circulated by the stepmother to the effect that the child of Mrs. Long, the other daughter of the testator, came near being a bastard, and that, this story having come to the ears of her father, it tended to prejudice him against her. Mrs. Elenora Meuth denies that she ever mentioned either fact to her husband. On one occasion the stepmother spoke of the wife of Charles Meuth in a disrespectful manner, saying she was "no account" and calling her bad names. On another occasion the testator threw an axe at his son Charles; and, on going home once in a temper, he broke all the dishes on the dinner table with his cane. It is also pointed out that when four of the children sent floral designs for their father's funeral, their stepmother caused their cards to be removed, thereby showing her disrespect for their father and her prejudice against the children. It appears, however, that the cards were removed by the undertaker for the purpose of enabling the family to send the acknowledgments usual in such cases. On another occasion, during an exceedingly wet season in 1878 or 1879, Andrew Meuth became very much enraged, cursed God, and, getting his gun, shot up into the clouds.

The testator's second son, Andy, was his chief assistant in running the farm, and to keep Andy at home his father sold him 82 acres of land near the Home Place. After the quarrel between Charles and his fa...