Prichard v. Kitchen
| Decision Date | 15 June 1951 |
| Citation | 242 S.W.2d 988 |
| Parties | PRICHARD v. KITCHEN et al. |
| Court | United States State Supreme Court — District of Kentucky |
H. R. Wilhoit, Grayson, for appellant.
Thos. D. Theobald, Jr., Grayson, for appellee.
This action was instituted by May Prichard, a daughter of James B. Kitchen, who died Sept. 6, 1948, against his other children, Dallas Kitchen, Ellis Kitchen, Martha Kitchen, Lena Rapaz and Dell Hammons, to contest decedent's will. The jury found for the will, and six grounds are assigned for reversal: 1. The paper does not substantially comply with the 'statute of wills, either in its form, execution or attestation'; 2. it is the product of an insane delusion; 3. the court erroneously ruled on evidence; 4. erroneous instructions were given; 5. the court erroneously refused to instruct on undue influence; 6. improper argument of counsel for appellees.
Testator left an estate of about $40,000, mainly real estate. The original paper in contest is in the record. It was drawn by F. A. Easterling, a notary public, on a printed form. All the language purporting to make disposition of decedent's property appears on the front page, with a blank space of approximately four inches below the last clause. There is no residuary clause. The clause appointing an executor, the testimonium, the name of testator, the attestation clause with the names of the witnesses, are on the back, or reverse, side of the printed form.
In 1946 testator had gone to Grayson, some 15 miles from his home, and employed Mr. Easterling to write four deeds for him conveying the greater part of his real estate to his wife and children, except appellant. All the deeds were not delivered but some were held by the decedent among his papers.
On Feb. 16, 1948, testator sent one of his sons for Mr. Easterling and for Luster Green and Fred Green, his neighbors. At that time Mr. Kitchen was 86 years of age; was confined to his bed; was unable to read, on account of poor eyesight; and was unable to hear, except when spoken to in a loud voice. When Easterling came, the old man told him how he wished his will drawn and asked that it be prepared according to his directions. The way Mr. Kitchen dictated, Easterling 'would write some and then he would ask him what else he wanted in it and Jim (Kitchen) would tell him and then he would go ahead and write that'. After Easterling had typed the will in testator's presence, he read it 'paragraph by paragraph' to him, and Mr. Kitchen approved the will as written, and said that 'was the way he wanted it'.
When Easterling had typed and read the will to Kitchen in the presence of witnesses, and testator had approved it, Easterling told him, 'this is ready to sign'. Kitchen said, 'I can't see to write, you will have to do the writing.' Mr. Kitchen then put his hand on the pen as Easterling wrote his name at the proper place. When Luster and Fred Green came in testator's room, someone told him that Luster and Fred Green were there 'for witnesses'. Kitchen said, 'That is all right,' he 'wanted the will witnessed'. Testator signed the will in the presence of Luster Green and Fred Green who then, in his presence, signed the will as witnesses.
The members of this Court have examined the original will. There is a space between the last disposing clause and the testimonium clause, but we do not find anything, either from the examination of the original will or from the testimony, indicating any irregularity because of this. See, Lucas v. Brown, 187 Ky. 502, 219 S.W. 796.
It appears that Easterling signed the testator's name at the proper place between the testimonium clause and the attestation clause at the direction of the testator and at a time when testator had his hand on the pen as Easterling wrote his name. Where a person's name is signed for him at his direction and in his presence by another, the signature becomes his own and has the same effect as though written by the person himself. KRS 394.040; Widick v. Pursifull, 299 Ky. 773, 187 S.W.2d 447.
The testator signed the will in the presence of Luster and Fred Green, and they in turn signed it as witnesses in his presence. This, under the facts, was a substantial compliance with KRS 394.040. Rybolt v. Futrell, 296 Ky. 158, 176 S.W.2d 269. The will in its form, execution and attestation substantially complies with KRS 394.040.
The testator devised lands to his sons, Ellis and Dallas; to his daughters, Lena and Martha, and to Dell Hammons, whom he refers to as 'my son'. He did not devise any land to his daughter May, appellant, but devised to her only $1,000 to be paid by his sons Ellis and Dallas. She says this was because of an insane delusion under which her father was laboring that her husband, Charles Prichard, and certain of his relatives, had grossly wronged him.
It appears that testator had agreed to lease appellant's husband some land, which the former understood was to be five acres, but the lease when prepared was for more than five acres. The coal under two tracts of land owned by Mr. Kitchen had been conveyed years ago by his father to two iron companies which operated in Carter County. Later a Mr. Cornett acquired the coal which for several years before this action had been held by his devisees. Appellant's husband leased some of the coal from the Cornetts. Testator, believing that he was the true owner of the coal, brought an action against the Cornetts. Appellant's husband gave up his lease and worked with Mr. Kitchen in the law suit. The Cornetts won, and Mr. Kitchen got the idea his son-in-law was working with the Cornetts and against him in that action. Mr. Kitchen on occasions stated that Bud Prichard and Watt Prichard of Carter County, close relatives of Charles Prichard, 'had done him wrong'. On account of these things, he came to dislike his son-in-law.
At the trial Dr. Townsend, a witness for appellant, in answer to a hypothetical question stated that in his opinion Mr. Kitchen, at the time of the execution of his will on Feb. 16, 1948, was of unsound mind and was under an insane delusion with respect to Charles Prichard and Charles Prichard's relative, and of unsound mind on that subject. Dr. Keffer, a witness for appellees and who had been a practicing physician since 1891, stated he was at a hospital in Ohio for three years where they 'had all forms of insanity' and where he dealt with insane people every day. He had known Mr. Kitchen for several years and he . Asked the same question propounded to Dr....
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