Newman v. Dixon Bank & Trust Co., Exor.

• Decision Date: 14 October 1924
• Citation: 205 Ky. 31
• Parties: Newman v. Dixon Bank and Trust Company, Exor., et al.
• Court: Kentucky Court of Appeals

205 Ky. 31

Newman v. Dixon Bank and Trust Company, Exor., et al.

Court of Appeals of Kentucky.

Decided October 14, 1924.

Appeal from Henderson Circuit Court.

YEAMAN & YEAMAN and BOURLAND & BLACKWELL for appellant.

DORSEY & DORSEY and RAYBURN & WITHERS for appellees.

OPINION OF THE COURT BY JUDGE CLAY — Affirming.

Dr. V. B. Newman, a resident of Henderson county, died on December 7, 1919, and left a will by which he devised his property to certain relatives, friends and charities. The will was dated October 17, 1917, and at that time he was nearly eighty years of age. Subsequently, he made two codicils, one dated October 2, 1919, and the other October 4, 1919. The will was probated in the Henderson county court, and on appeal in the Henderson circuit court, the will was contested by Elliott L. Newman, the only child of the testator; on the ground of mental incapacity. Pursuant to a peremptory instruction, the jury returned a verdict sustaining the will. Judgment was entered accordingly, and Elliott L. Newman has appealed.

The only question for decision is, whether the evidence of mental incapacity was sufficient to take the case to the jury.

The record discloses that for many years prior to his death V. B. Newman was a regular practicing physician of Webster county. In the year 1885 he became angry at his wife and ordered her and their three children to leave home. They were put in a wagon with some articles of clothing, and driven to a neighbor's. About the same time, he conveyed a farm in Union county, containing about 110 acres of land, to his wife for life, remainder to their children in fee. Several years later, two of the children died leaving wills by which they devised their interest in the property to Elliott Newman. After their departure the only communication he had with his wife or children was to send to his daughter a dress, and to each of the boys $10.00 apiece, and to write appellant a letter saying that he wanted to see appellant, but appellant neither answered the letter nor called to see him. The testator was a vigorous minded, energetic man, and acquired what might be called a large estate for the locality in which he lived. He was a man of high temper, strong prejudices and inclined to debate. One of his contentions was that the negro was a brute and had no soul, and that the Catholics would destroy the republic and each of their churches was an arsenal equipped for that purpose. He also rejected the germ theory of disease, and was known to argue that each pooler should receive the same price for his tobacco. According to Dr. Winstead, the testator was an extremist on any subject, and was not a well balanced man. After calling attention to the testator's views on the negro and the Catholic churches, he gave it as his opinion that a man who is as easily influenced by prejudice as the testator was would not be capable of disposing of his estate. However, on cross-examination he said that he had a land deal with the testator; that the testator knew its value, and how to dispose of it. He also added that he believed the testator had sufficient mental capacity to make a survey of his property, and know its value, and the objects of his bounty and his natural obligations to them. He further said: "There is just this about it, if there was no prejudice no way he was all right, but if he was a little mad at any of his — those who had claims on him — I think he would go any limit rather than to yield." He concluded his testimony with the statement that, regardless of his prejudice, he believed the testator would know how he was disposing of his estate.

The appellant testified to the circumstances under which his mother and the children left the home of his father. He knew nothing about his father's mental capacity. At the time he testified he was 42 years of age, and had never visited his father.

Sam Campbell knew the testator thirty or forty years. The testator bought a piece of land from him. He called attention to the testator's views on the negro and the Catholic church, and gave it as his opinion that the testator was not possessed of testamentary capacity. On cross-examination he stated that the doctor was a rather sharp man, and would not say that he was particularly broad. He regarded the doctor's mental capacity as limited because he made most of his money by his profession, and a year or so before he died went off on a hobby and said that medicine was a humbug. He then went to rubbing people on the back, "making their backs pop," and said that it would do them more good than all the medicine.

Ben Watson had known Dr. Newman all his life. The doctor had a good deal of book learning, and believed that a man ought to go to school. The doctor was a high-tempered man and very prejudiced in some things. He was always talking about the negro or the Catholic church. On being asked if Dr. Newman knew the location and value of his property, his natural duty to his children, or those who had claims on his bounty, and how to dispose of his property according to a fixed purpose of his own, the witness said: "Well, Dr. Newman I always regarded as a man of good sense, but he was a man of very high prejudice, and it might have been that if he had a little prejudice against you he might not have done what he conceived to be right."

G. M. Eubank had known the doctor for many years, and the doctor had saved his life. The doctor on one occasion had said that his only objection to the tobacco pool was that they didn't grade every man's tobacco at the same price. The doctor would also maintain that the negro was a beast and had no soul. In his arguments the doctor would not pay any attention to him, but would go on with his argument.

J. L. Harris, a brother-in-law of the testator, testified that he paid his sister $720.00 which came from his mother's estate; that the doctor said he was going to put it into Union county land. The witness further stated that he had shot Dr. Newman and tried to kill him, yet he had a feeling for him and was glad it went off like it did. He felt the doctor was not responsible for what he did or what he said.

Judge Flournoy had known Dr. Newman ever since he came to Union county, and in answer to the question as to whether the doctor had testamentary capacity the witness said: "If his antipathies were aroused, or he became irritated by any proposition at all, I would say absolutely no. I...