Myers v. Young

• Decision Date: 23 June 1922
• Citation: 242 S.W. 864,195 Ky. 527
• Parties: MYERS ET AL. v. YOUNG ET AL.
• Court: Kentucky Court of Appeals

242 S.W. 864

195 Ky. 527

MYERS ET AL. v. YOUNG ET AL.

Court of Appeals of Kentucky.

June 23, 1922

Appeal from Circuit Court, Casey County.

Proceeding by Emma Myers and another for the probate of the last will and testament of Lucy J. Gann, deceased, contested by Allie Young and others. From a judgment denying the probate of the will, contestees appeal. Reversed for new trial.

Stone &amp Moore, of Liberty, and George E. Stone, of Danville, for appellants.

Charles F. Montgomery, of Liberty, and W. S. Taylor, of Indianapolis Ind., for appellees.

SAMPSON J.

This litigation arose over a paper purporting to be the last will and testament of Lucy J. Gann, who died domiciled in Casey county on May 11, 1920. She had never been married, although she was the mother of two children, one of whom, Mrs. Young survives her. She died, after many months of pain and suffering, from a malignant cancer. She had one sister, Mrs. Emma Myers, the wife of W. C. Myers. Some nine years before the death of the testatrix, her brother willed to her and his other sister, appellant Emma Myers, a tract of about 100 acres of good land, situated in Casey county, on which there were improvements of value. As testatrix and her sister had lived together continuously from their infancy, they both immediately moved into the same house on this tract of land. They were extremely poor people before they received this devise. They had never owned any lands or much other property. After they came in possession of the 100 acres of land devised to them by their brother, they adopted the community plan of cultivating the farm together and making deposits of the returns received from their products to the account of W. C. Myers. Before testatrix received the devise of the one-half interest in the land, her daughter, Allie Gann, was married to one George Young. These young people lived in that part of the county for some time, and then moved into Indiana, where they resided for more than 15 years before the death of testatrix. At frequent intervals, however, the daughter returned to visit her mother, and they were on the very best of terms. Likewise was the testatrix on intimate terms with her sister, Mrs. Myers, with whom she lived. Indeed, it appears to have been a harmonious family.

The will in question was executed on April 5, 1920, which was a slight bit more than a month before the death of the testatrix on May 11th. Another paper purporting to be the will of Lucy J. Gann was first presented to the court for probate. By its terms appellant Mrs. Myers received somewhat more property than she did under the first paper which was finally probated. The second paper was abandoned. The will probated reads as follows:

"I, Lucy J. Gann, of the county of Casey and state of Kentucky, of sound mind and memory, do make my last will and testament in manner and form that is to say:

(1) It is my will that my funeral expenses and all just debts after my death shall be fully paid.

(2) I give, devise and bequeathe my sister Emma Myers, the wife of W. C. Myers, my half interest of the farm that or where we now own.

(3) I give, devise and bequeathe my daughter Allie Young ($600.00) six hundred dollars to be made in two equal payments to be paid by W. C. Myers and wife Emma.

(4) I hereby appoint W. C. Myers my executor without bond to settle my estate.

Subscribed, signed and sealed by me. Dated this the 5th day of April, 1920.

Lucy J. Gann

Signed and sealed in the presence of

S. M. Owens.

L. B. Owens."

After the probate of the paper, appellee Allie Young prosecuted an appeal to the Casey Circuit Court where the whole case was heard by a jury, which, after hearing the instructions of the court and deliberating upon the case, returned a verdict finding the paper in contest not to be the last will and testament of Lucy J. Gann. Judgment being entered in accordance with that verdict, Emma Myers and her husband appeal.

In their motion and grounds for new trial, appellants set out the following reasons:

(1) Because the verdict of the jury is not sustained by sufficient evidence and is contrary to law.

(2) Because the court erred in giving instructions 1, 2, and 3.

(3) Because of the admission of incompetent evidence on behalf of appellees, Allie Young, et al.

(4) Because of the rejection of competent evidence offered by appellant.

(5) Because the court erred in permitting appellees to read in evidence the instrument of writing dated April 10, 1920.

(6) Because the court erred, after admitting the evidence of W. C. Myers, in admonishing the jury that they should not consider any of the evidence of said Myers for any purpose, other than that part of same which had not been testified to by the wife, Emma Myers.

Appellees say: (1) That the judgment should be affirmed because the verdict is amply sustained by the evidence; (2) that there is no error in the instructions prejudicial to the rights of appellants; (3) the court did not err in the admission of evidence of which appellants complain. The converse of the foregoing are the three grounds upon which appellant relies for a reversal of the judgment.

1. It is hardly worth while to take up time discussing the evidence, for we are thoroughly convinced that there was sufficient evidence, not only to take the case to the jury but to sustain the verdict. Miss Gann, who had been a sufferer from a malignant cancer for many months, had been given up by her physicians as incurable some time in January or February, 1920, before the will was made on April 5th of the same year. She suffered excrutiating pain. The doctor informed the family it was useless for him to visit testatrix, for he could do no good, except to administer a narcotic to relieve the pain, and he did not visit her after January or the early part...