Oder's Ex'r v. Webster

• Decision Date: 18 May 1928
• Citation: 224 Ky. 551,6 S.W.2d 690
• Parties: ODER'S EX'R et al. v. WEBSTER et al.
• Court: Kentucky Court of Appeals

6 S.W.2d 690

224 Ky. 551

ODER'S EX'R et al. v. WEBSTER et al.

Court of Appeals of Kentucky

May 18, 1928

Appeal from Circuit Court, Grant County.

In the matter of the estate of Sally F. Oder, deceased. From an order of the probate court admitting decedent's will to probate, Maggie Webster and others appealed to the circuit court, which found against the will, and W. T. S. Blackburn executor, and others, appeal. Affirmed.

Rouse &amp Price, of Covington, for appellants.

F. A Harrison and J. J. Blackburn, both of Williamstown, for appellees.

THOMAS J.

On April 18, 1921, Sally F. Oder, a resident of Grant county and who was then 78 years of age, executed her will, which was probated in the county court of Grant county on December 13, 1926, she having died some few days prior thereto. Contestants and appellees, Maggie Webster and others, who were her only surviving heirs, contested the will by appealing from the order probating it to the Grant circuit court, and at the trial of that appeal the court by its instruction submitted to the jury the contest ground of mental incapacity of testatrix, but declined to submit the other ground of undue influence, and the jury found by its verdict that the paper was not the last will and testament of the testatrix. The motion for a new trial by contestee and appellant W. T. S. Blackburn (who was made the executor of the will as well as a substantial devisee therein) was overruled, and from the judgment pronounced on the verdict he prosecutes this appeal. Only two grounds are urged in brief of counsel for a reversal of the judgment, which are: (1) Error of the court in overruling the executor's motion for a peremptory instruction, and (2) that the verdict of the jury on the sole issue submitted to it (mental capacity of the testatrix) was and is flagrantly against the evidence. Since both grounds are directed to the insufficiency of the evidence they will be considered and disposed of together.

Testatrix, as we have said, was 78 years of age at the time she executed her will. Her husband, somewhat older, was then alive, but he died in June, 1926, preceding her death in the following December. At the time of the execution of the will Mr. and Mrs. Oder had one child living who had several years before married a Mr. Williams and to whom some three or four children were born, but they had all died and the daughter seems to have largely earned her own living by working the greater part of the time away from home. Some month or more following the execution of the will the daughter became afflicted with some ailment and came to the home of her parents, where she lingered until about August 1 of that year and died.

The will devised to the daughter "my gold watch and chain which I value at fifty dollars, two silver spoons that were handed down from my grandparents, and twenty-five dollars in cash." The third clause bequeathed to the husband of testatrix all of her household and kitchen furniture, live stock and chickens, "and the use and benefit of any real estate that I may own or have an interest in at the time of my death, for and during his natural life"; after which she directed that the real estate and the specific personal property devised to her husband be sold, and that the cash on hand at her death and her other personal property not specifically devised to her husband should constitute a trust fund "for the use and benefit of my husband, William Oder, and my daughter, Eudora Alice Williams, according to the directions hereinafter set out."

Subsequent directions were, that her executor should pay to her husband the income from the trust fund created by her during his life and that at his death the same trust fund, as augmented by the sale of her real estate and specific personalty devised to her husband, should be for the benefit of her daughter, Mrs. Williams, and the income therefrom to be paid to her if she survived Mr. Oder, and that upon the death of the survivor (either her husband or her daughter) the entire trust fund was devised to "W. T. S. Blackburn (appellant), if living, and if dead to his children." Neither the husband nor the daughter of the testatrix survived her, and upon her death, under the terms of the will Blackburn, a stranger in blood, took the entire estate, amounting in the aggregate to about $7,800. It appears in the record that on the same day testatrix executed her will her husband executed an exactly similar one with Blackburn as absolute devisee in remainder in each of them. The latter had been to the home of the two old people on the morning of that day, and after returning therefrom he approached the attorney who wrote the two wills and informed him that Mr. Oder had suggested to witness (Blackburn) that he was very desirous that the attorney should prepare the papers about which Mr. Oder alone had consulted with the attorney on the day before, but as to the nature of the papers Blackburn professed profound ignorance. Within a short while after the attorney received that message and on the same day he went to the Oder home in the outskirts of Williamstown, and there accompanied him the other witness to the will and Mr. Blackburn. When the parties arrived Blackburn did not tarry in the room where the attorney met the two old people whose wills he had prepared, but went elsewhere in the house or on the premises and was absent during the entire transaction.

The attorney testified that he had never seen the testatrix before and he had very little conversation with her, and he...