Robinson v. Davenport

• Citation: 201 S.W. 28,179 Ky. 598
• Parties: ROBINSON ET AL. v. DAVENPORT ET AL.
• Decision Date: 05 March 1918
• Court: Court of Appeals of Kentucky

201 S.W. 28

179 Ky. 598

ROBINSON ET AL. v. DAVENPORT ET AL.

Court of Appeals of Kentucky.

March 5, 1918

Appeal from Circuit Court, Warren County.

Will contest by John A. Robinson and others against Charles G Davenport, executor, and others. From an adverse judgment contestants appeal. Affirmed.

W. B Gaines and Sims, Rodes & Sims, all of Bowling Green, for appellants.

Bradburn & Basham, of Bowling Green, for appellees.

THOMAS J.

The appellants are contestants of the will of Miss Columbia Buckner, a maiden lady who died in February, 1915, at the age of nearly 93 years. The will was executed on February 28 1911, when the decedent was 88 years of age. The contestants are collateral relatives of the decedent, the nearest relationship of any of them being a nephew. The usual grounds of such a contest, that of mental incapacity and undue influence, are urged as causes for rejecting the will. Upon a trial of the contest in the county court the will was probated, and from that order and judgment the contestants prosecuted an appeal to the circuit court, in the trial of which a similar verdict was returned by the jury impaneled to try the case, and from the judgment rendered on that verdict probating the will and dismissing the contest this appeal is prosecuted.

By her will the testatrix devised her farm in Warren county, consisting of about 200 acres, her one-half interest in the household and kitchen furniture, and some live stock to Miss Ella Myrtle Tarrants, a young lady who had lived with, looked after, and cared for the decedent and performed household duties for a period of 17 or 18 years. To her sister-in-law, Mrs. Lizzie Buckner, she devised $400; to a little boy who lived in the house, $25, and to her relatives and a number of her friends she devised various articles of personal property in the nature of heirlooms, or which were otherwise specially valued by the testatrix.

A condensed statement of the facts, sufficient, however, to understand the issues, is that the decedent owned about 200 acres of land in Warren county, located on Barren river about three miles from the city of Bowling Green. As much as or more than 50 years ago her father Maj. Archibald Buckner, deeded the farm to his daughter, the decedent, by an absolute deed. After the death of her parents the decedent continued to live upon the place, and it seems that her brother, Jim Buckner, lived with her, as did his wife, Mrs. Lizzie Buckner. About the year 1893 the brother died, but his widow continued to live with the decedent upon the farm. In 1906 John Robinson, who was the husband of decedent's sister, died, and the sister moved upon the place and lived there until her death some 5 or 6 years thereafter.

For about 18 years before the death of the decedent the principal devisee and contestee, Miss Ella Myrtle Tarrants, who was then a poor girl 16 years of age, went to the home of the decedent as a servant girl, under a contract by which she was to do the general household duties, including cooking, washing, milking, etc., for her board and $4 per month. She faithfully did that work upon those terms for more than 15 years, when, according to the testimony, she began to do outside work, such as attending to the garden, and perhaps work of other character, when her wages were increased from $4 to $5 per month, which she received until the decedent's death. A year or two after Miss Tarrants went to the place under the terms specified, the decedent sustained a fall of some character, in which she received an injury to her back which forever disabled her from walking or otherwise getting about unassisted, and from that time on she occupied a rolling chair. When it would be necessary for her to go to her meals Miss Tarrants would have to lift and support her to and from the table. For a number of years before her death, on account of her physical afflictions, she became more troublesome, and duties arose in looking after her similar to those necessary to bestow upon helpless children. These, according to the testimony, were practically all performed cheerfully and without grumbling by Miss Tarrants. For many years during the helpless condition of the decedent in appropriate seasons of the year she would attend church in the neighborhood, which would require her to be lifted into the vehicle, which would be driven to a window near the preacher, and from which the sermon could be heard. On these occasions the faithful Ella would be along, ready to administer to the decedent's every want and requirement. A great affection grew up between the two, according to the testimony, akin to, if not fully as strong as, that existing between mother and daughter. The contestants, during the physically helpless condition of the decedent, rarely visited her, and when they did so their visits would be short, as though the task were irksome. On the morning of the day upon which the will was executed, the decedent sent word by Miss Tarrants to one of her neighbors, a Mr. Davenport, for the latter to come over to her house. The request was obeyed, and when Mr. Davenport arrived he was informed by the decedent that she desired to execute her will, and she wanted him to procure Judge Bradburn, of Bowling Green, to write it and a Mr. Ennis and a Mr. Savage to witness it, but instructed him that before he went to town to procure those persons for him to send Mrs. Davenport over there. Within a reasonable time she arrived, and the decedent told her how she wanted her will written, and requested Mrs. Davenport to make a pencil outline of her wishes. This was done, but two or three efforts were made by Mrs. Davenport before she got the pencil notations as the decedent wanted them. Some time in the early afternoon the attorney and the witnesses arrived, and the will was duly prepared and executed, the attorney being furnished with the pencil notes as outlined for the draft of the will, and after its execution it was delivered to him, with the instruction to keep it in his office until the decedent's death, or until she called for it. A little more than 3 years thereafter she died without having called for it, and it was subsequently probated, as stated.

Upon the trial eight witnesses, including appellants, testified in their behalf upon the issue of the testatrix's mental capacity, while nine witnesses, including Miss Tarrants testified for appellees upon the same subject. The eight witnesses mentioned introduced by contestants upon that point gave it as their opinion that the testatrix did not have, according to the required legal standard, sufficient mental capacity to execute a will, but many of them had not seen her for as much or more than a...