Rueff v. Light

• Decision Date: 04 March 1938
• Citation: 272 Ky. 449
• Parties: Rueff v. Light et al.
• Court: United States State Supreme Court — District of Kentucky

272 Ky. 449

Rueff v. Light et al.

Court of Appeals of Kentucky. Common Pleas Branch, Third Division.

Decided March 4, 1938.

1. Wills. — Testimony as to coolness on part of daughters and of family during part of time they lived with testator lacked probative quality on charge of undue influence on part of one of daughters.

2. Wills. — Testimony that after testator had suffered an apoplectic

stroke eleven years prior to execution of will he was not friendly and alert as he had previously been, and that he would ask and tell the same things over frequently in the course of an evening did not establish incompetence to execute a will.

3. Evidence: Wills. — Lay and expert testimony respecting testator's condition after apoplectic stroke suffered eleven years prior to execution of will, coupled with expert testimony respecting the usual effect of apoplexy on the victim, was insufficient for jury on issue of mental capacity to execute a will, in absence of an adverse response to a properly propounded hypothetical question thereon.

4. Evidence. — Hypothetical questions propounded to experts must reflect the true state of facts in evidence.

5. Evidence. — A hypothetical question grouping therein the facts forming the premises upon which the witness' answer must be based must include no facts not shown by some of the testimony to have existed, nor omit any relative fact shown by some of the testimony.

6. Evidence. — In will contest, a hypothetical question asking physician to base his opinion on assumption that fourteen years prior to death testator had had various diseases and on assumption that condition gradually became worse until eleven years later during year in which he executed will when he had paralysis and high blood pressure was properly refused in absence of evidence of any of the diseases or that testator had gradually become worse after attack, or that testator had paralysis and high blood pressure about the time will was executed.

7. Wills. — Evidence that daughter had opportunity to influence testator did not warrant annulling will on ground of undue influence in absence of other evidence that influence was actually exerted or showing that testator was susceptible of being influenced.

8. Wills. — A will executed by a testator who had mind sufficient to appreciate the natural objects of his bounty, his duty to them, and to make a survey of his estate and to dispose of it according to a fixed determination and purpose would not be annulled on ground of either mental incapacity or undue influence.

9. Wills. — Will itself was evidential of testator's capacity and freedom from undue influence in execution thereof.

Appeal from Jefferson Circuit Court.

RICHARD B. CRAWFORD, KENDRICK LEWIS, RICHARD P. DIETZMAN and THOS. A. BALLANTINE for appellant.

DODD & DODD for appellees.

OPINION OF THE COURT BY MORRIS, COMMISSIONER.

Affirming.

On February 1, 1935, appellant instituted suit in the lower court seeking anulment of her father's will. She named as defendants the appellee, individually and as executrix, Oscar Light, her brother, and five or more institutions, to which testator had made bequests.

Appellee asserted in her pleading that her father, Frank P. Light, died in January, 1934, leaving surviving the three children mentioned above; that the will had been admitted to probate and, as provided therein, appellee had qualified as executrix, and was so acting.

The will is challenged on the grounds that at the time it was executed and prior thereto the testator was so incapacitated mentally as to be unable to properly execute a will. It was also charged that the will was prepared and executed under undue influence on the part of appellee.

Issue was raised by the filing of an answer by appellee, denying the allegations of the petition. After hearing proof offered by appellant, the trial court sustained appellee's motion for a verdict directed in her favor, followed by dismissal of the petition, and from the court's ruling appeal is prosecuted. The contentions urged as grounds for reversal are: (1) Error of the court in directing the jury to return a verdict for appellee, defendant below, and (2) error of the court in not permitting a witness to give answer to a certain propounded hypothetical question.

The will, executed March 3, 1932, after providing for payment of debts, by item 2 devised to his son Oscar three lots, two with improvements, located in or near Louisville, and a gold watch. To this item there was added:

"In explanation of this devise and bequest I desire to say that I am bearing in mind that my said son was extravagant with that portion of the estate left to him by his mother, and up till this time there has been no change in his actions, and he has not lived at home for approximately five years."

By item 3 of the will the testator gave appellant a lot and two buildings located at 529 Roselane street and a lot in Edgewood subdivision. He added,

"In making this devise I have taken into consideration the fact that during her unmarried life my said daughter Elma had sufficient opportunities to provide for herself and earned a large salary until she was married, and after my beloved wife died my said daugher continued to work until she was married, and after she married she left my home, as was to be expected, and has a husband who is amply able to provide for her."

To the daughter Catherine (appellee) testator devised the residue of his estate, consisting of seven or more parcels of real estate, all of which were particularly described in the writing, his personal property on the "premises of the homstead," life insurance, stocks, cash on hand. Testator explained that the devises and bequests to appellee were so made "because she is the youngest of my children; because she has been very faithful to my interests and my comfort; because she gave up valuable employment when she had opportunity for promotion to care for my home, and she has faithfully looked after my interests and comfort and has acted as housekeeper for me since the death of my beloved wife."

Testator died on January 11, 1934, when he was about seventy-six years of age. The mother, who had executed a will in 1921, died in 1927. Appellant was married September 11, 1931. Prior to 1921, testator had been an employee of the Standard Oil Company, retiring in that year on a pension, his retirement being due to a nervous breakdown. Some trouble seems to have arisen after the retirement of testator. When the mother died, both the daughters were living in the home. Each had substantial positions; the appellant was making about $140 a month and appellee about $120. Under the mother's will, the three children received jointly for life the real estate owned at the time of her death. This property apparently consisted of parcels of real estate with improvements of a moderate rental value. In August, 1928, testator, the two daughters, and the son entered into a written contract whereby it was agreed that appellee was to give up her employment and "devote her entire time to the management of the home," jointly maintained by the four members of the family. The contract provided that before there was made a distribution of the income from rental properties, Catherine should be paid monthly the sum of $100. She at once gave up her work and entered into the performance of the contract, and carried it out until her father's death. It worked satisfactorily until the time of, or shortly before appellant's marriage in 1931. It is claimed that there then arose an unfriendliness, if not decided hostility between the two sisters, from which it is said it was made apparent that appellant was not wanted in the home. She says that though she had been a kind and dutiful daughter there was objection to her being married in the home. She was compelled because of this objection to go to a hotel to dress for her wedding and was later married in church. After her marriage, the breach between appellant and the father and appellee became widened. It is claimed that Catherine did much to prevent appellant from visiting her father. Appellant says that Catherine and the father quarreled frequently; that her father had assured her that he would devise his estate equally to the two daughters. Appellant testifies that she did not attempt to visit her father from the time of the marriage until July, 1933, giving the reasons for her failure. In September, 1933, she says she learned from neighbors that her father was ill. Thereafter she relates, by reference to a diary which she had kept, each and every day she visited or attempted to visit her father. Of some fourteen visits to the home she was admitted about ten times and denied admittance about four times, or on some of the occasions failed to get response when she sought admittance. Once she was told that her father could not see any one; again not admitted by a new nurse in attendance. All these failures to see the father she charges to the hostile feeling toward her by her sister. It appears that in July, 1933, testator deeded all his property to Catherine. Appellant says she raised no complaint because of the condition of her father. The appellant and her sister had not spoken to each other since some time in 1931. It is claimed that the mother and father had made wills in 1921 by which they had willed their respective properties to the three children. This is not so clear as to the father. In 1932 appellant was requested to meet the father at some bank for the purpose of opening a lock box so that the father could remove the former will, which was done. The will in contest was written very shortly after this time. When this will was removed, as appellant testifies, there was found in the box the following memorandum in type:

"To be attached to agreement: Remarks. On July 1, 1930, Elma A. Rueff failed to comply with the attached agreement. Catherine, who gave up a good position after her mother's...