Redwine's Ex'r v. Redwine

• Decision Date: 15 October 1914
• Citation: 160 Ky. 282,169 S.W. 864
• Parties: REDWINE'S EX'R ET AL. v. REDWINE.
• Court: Kentucky Court of Appeals

169 S.W. 864

160 Ky. 282

REDWINE'S EX'R ET AL. v. REDWINE.

Court of Appeals of Kentucky.

October 15, 1914

Appeal from Circuit Court, Breathitt County.

Suit by Nellie Redwine against D. B. Redwine's executor and others. From a judgment for plaintiff, defendants appeal. Affirmed.

W. N Cope, of Jackson, for appellants Elsie and Isabelle Redwine.

L. Y Redwine, J. J. C. Bach, G. W. Fleenor, and Grannis Bach, all of Jackson, for other appellants.

O'Rear & Williams, of Frankfort, and A. F. Byrd, of Jackson, for appellee.

CARROLL J.

Judge D. B. Redwine died on the 25th day of February, 1913 domiciled at the time of his death in Breathitt county, Ky. He left surviving him his widow, the appellee, Nellie Redwine, and two infant children, Elsie and Isabelle, as his only heirs at law. For a couple of years before his death Judge Redwine was afflicted with a fatal malady, and his death was apprehended at any time. In the winter of 1912, he left his home in Kentucky and went with his wife and children to Florida, hoping to be benefited by the change of climate and conditions. While they were so sojourning in Florida and on January 25, 1913, his wife executed and delivered to her husband a writing, reciting that:

"For the consideration that my husband, D. B. Redwine, wills to me the house and lot in Jackson, where we now live, and the contents thereof, and the cottage where Andy Hurst now lives, and $8,000, I hereby release and relinquish all my claim, dowry and homestead in the estate of said Redwine for the consideration above stated. [ Signed] Nellie Redwine.

Attest: A. P. Redwine."

On January 29th, while yet in Florida, Judge Redwine made a will, the pertinent parts of which are as follows:

"For the fulfillment of and compliance with the terms and contract executed January 25, 1913, by Nellie Redwine, I, D. B. Redwine, make and publish this my last will and testament.

First: I hereby will and bequeath to my wife, Nellie Redwine, the house and lot in Jackson, Kentucky, where we now live, and the contents thereof, and the cottage where Andy Hurst now lives, and eight thousand dollars. The said two houses and lots and eight thousand dollars tax is to be her full share and portion of my estate, both real and personal and in full satisfaction of her claim and dowry and homestead.

Second: I will and bequeath all of the remainder of my estate both real and personal to my two daughters, Elsie Redwine and Isabelle Redwine, and if either should die without children or grandchildren living at the time of their death, then the portion of such one shall go to the other. In the event that both should die without children or grandchildren surviving them the whole of their portion of said estate shall go to and be distributed among my brothers and sisters.

Third: I hereby nominate and appoint Dr. J. S. Redwine my executor to carry out the provisions of this will, and I also appoint Dr. J. S. Redwine and J. C. Hurst guardians for said Elsie and Isabelle Redwine; the said guardians are to have jointly the control and management of their estate."

And on February 11th he made in Florida the following codicil to his will:

"I, D. B. Redwine, being of sound mind and disposing memory, do make and publish this last habendum to the will I made January 29, 1913.

It is my will that the portion of my estate set apart to Elsie and Isabelle Redwine shall go to them during their lives only, and that the income, profits and rents shall be theirs to enjoy as they and their guardians see proper.

If either of said children die without children or grandchildren entitled to inherit, then the portion of the estate of that one shall go to the living one, but if neither one dies leaving children or grandchildren then the whole of their estate shall pass to my brothers and sisters.

I am making these limitations upon their estate believing it to be for their good."

After the death of Judge Redwine the will and attached codicil were duly probated in the Breathitt county court, and the contract executed by his wife was also recorded. On May 12, 1913, the widow filed in the clerk's office of the county court of Breathitt county the following renunciation of the will of her husband, duly signed and acknowledged by her:

"Know all men by these presents: That I, Nellie Redwine, widow of D. B. Redwine, deceased, do hereby renounce the provisions of the will of my said husband, D. B. Redwine, who died a resident of and domiciled in Breathitt county, Kentucky, on the 25th day of February, 1913, and which will was on the 24th day of March, 1913, duly admitted to probate by the Breathitt county court and established as the last will and testament of the said D. B. Redwine; and I hereby relinquish the provisions of said will for my benefit and elect to take my dower and distributable share of my said husband's estate as if no will had been made by him."

On the same day she executed and acknowledged before the county clerk the following paper:

"Know all men by these presents: That whereas, on January 25, 1913, the undersigned, Nellie Redwine, signed and executed a writing in words and figures as follows:

'January 25, 1913. For the consideration that my husband, D. B. Redwine, wills to me the house and lot in Jackson, where we now live, and the contents thereof, and the cottage where Andy Hurst now lives, and $8,000, I hereby release and relinquish all my claims, dower and homestead, in the estate of said Redwine for the consideration above stated.

[Signed] Nellie Redwine.

Attest: A. P. Redwine.'

* * * And whereas, the said writing dated January 29, 1913, purporting to be the last will and testament of the said D. B. Redwine, was duly admitted to probate by the judge of the Breathitt county court on the 24th day of March, 1913, and the same, together with the said writing dated January 25, 1913, are recorded in Will Book 1, page 80, in the office of the clerk of the Breathitt county court; the undersigned, Nellie Redwine, as the widow of said D. B. Redwine, hereby renounces the provisions and terms of said writing dated January 25, 1913, and signed by her, and also renounces the terms of said will purporting to will and bequeath to her the said real estate, personal property and money referred to in said will in full satisfaction and release of her dower, homestead and interest in the estate of the said D. B. Redwine, deceased, and relinquishes all of the provisions of said will and the terms of said writing for her benefit and the rights granted, and the property willed and bequeathed by same, and elects to take her dower and distributable share in the estate of her husband, D. B. Redwine, deceased, as provided by law."

And this paper on the 15th day of May was lodged for record and recorded in the county clerk's office of Breathitt county.

In June, 1913, the widow filed this suit in equity, in which after setting out the execution and recording of the foregoing papers, she averred that the writing executed by her on January 25, 1913, if binding at all, should be construed only in the nature of a jointure, the provisions of which she renounced in the manner stated. She further averred that its execution was without consideration, and asked that the estate of her husband be settled, that the writing executed by her be canceled and held for naught, and that she be adjudged entitled to her dower and distributable share of the estate of her husband. In an amended petition, she further averred that at the time of the execution of the writing by her, her husband represented to her that the value of his estate at that time was only about $45,000 or $50,000, and that the property and money which she agreed to accept by the writing was equal in value to at least one-third of the value of his entire estate, and further promised that he would devise the remainder of his estate to their two children without any restrictions upon their right to use, hold, and control the same; that she relied on the representations and promises so made. She further averred that she first objected to signing the said writing, and that upon her refusal at first to sign the paper, her husband told her that if she did not sign it and agree to accept the property mentioned therein, in full satisfaction of her interest in his estate, he would then make a will which would be much less favorable to her, by which she would get much less money and property than by the terms of the will she was then signing. She also averred that at the time she signed the paper, she believed that his estate was only worth $45,000 or $50,000, and also believed that unless she did sign the writing her husband would make a will that would either disinherit her entirely or give to her much less property and money than she would receive under the paper she signed; that at the time the paper was written, she was in the state of Florida, among strangers, and had no one with whom she could confer or consult, but that, notwithstanding her disinclination to execute the paper, he prevailed on her to sign it. She also averred that his representations with reference to the value of his property were false, and that his estate, instead of being worth $45,000 or $50,000 was worth at least $90,000, all of it being in money and collectible evidences of debt except the real estate mentioned in the writing. It was further averred that the representations as to the value of his estate were made by him for the purpose of deceiving and misleading her, and for the purpose of securing her signature to the writing, and that when she signed the writing she believed that she was getting under it about one-third of his estate, as the property and money mentioned in the writing amounted in value to about...