Seals v. Seals
| Decision Date | 26 March 1926 |
| Citation | 213 Ky. 779 |
| Parties | Seals v. Seals. |
| Court | United States State Supreme Court — District of Kentucky |
1. Wills — "Undue Influence" is Such as Destroys Testator's Free Agency and Operates on His Mind at Time he Executes Paper. — Undue influence is such as destroys testator's free agency, constraining him to do against his will what he would otherwise refuse to do, whenever exerted, if operating on testator's mind at time he executes paper, but any reasonable influence by acts of kindness or appeals to feelings or understanding, not destroying free agency, is not undue influence.
2. Wills — Testimony of Undue Influence, to Invalidate Will, Must be Such as to Authorize Jury to Infer that Undue Influence was Actually Exercised. — For undue influence to invalidate will, there must be not only opportunity to exercise such influence or possibility that it was exercised, but testimony must be such as to authorize jury to infer that it was actually exercised.
3. Wills — Evidence Held Insufficient to Warrant Conclusion that Testamentary Paper was Not Testator's Last Will Because of Undue Influence. — Evidence showing merely that testator's wife had opportunity to discuss making of will with testator or to attempt to exercise influence over him, but not proving that she ever talked to testator about making will or attempted to influence him, held insufficient to warrant jury in concluding that testamentary paper was not last will of testator because of undue influence.
Appeal from Kenton Circuit Court.
C.B. SHIMER and GEORGE SLALINE for appellant.
JOHN H. KLEETE and STEPHENS L. BLAKELY for appellee.
Reversing.
Appellant, Daisy Seals, was the second wife of George R. Seals, whose last will is now in contest, and appellee, Walter Seals, is the only child of the testator now living. The will bears date June 12, 1922, and the testator died on the 29th of December, 1924. Walter, a man of mature years, is not the son of appellant, his mother being dead. The second item of the will of George R. Seals reads:
Appellant was also made executrix without bond. The testamentary paper was witnessed by Samuel Bodkin and his wife, Mrs. Samuel Bodkin. Before his marriage to appellant, the testator made a will giving the son, appellee, Walter Seals, the property.
The son instituted the contest on the ground of want of mental capacity on the part of the testator and of undue influence exercised over him by appellant, testator's wife. Evidence of mental incapacity was lacking and that ground of contest has been wholly abandoned but it is now insisted by contestee that the testator was unduly influenced in the making of the will.
The due execution of the will was proven by attesting witnesses called by appellant, then the propounder. These witnesses stated that the will was signed by testator at the home of the witnesses in Covington; that it was brought there by Mr. and Mrs. Seals, who came together; that no one was present at the signing except the testator and appellant and the two witnesses, Mr. and Mrs. Bodkin; that the will was typewritten and ready when brought to the Bodkins home by appellant and the testator. The witnesses did not know who had prepared the will; that the witness, Mr. Bodkin, had on an occasion some seven or eight years before, witnessed another will for the testator; at that time the testator's first wife was living. The present will was signed and witnessed on Sunday afternoon; that both witnesses read the will through in the presence of the testator before he signed it and before it was witnessed by them; that the appellee, Walter Seals, was not present; that the testator's mind was good, he appearing to be in the same mental condition as on previous occasions; that he was somewhere in the seventies; that the appellant, who was present at the signing of the will, "never said a word." The testamentary paper was prepared by testator's banker, Mr. James A. Stephens, of the First National Bank of Ludlow, Ky. He had known testator for ten or fifteen years. Mr. Stephens testified that Mr. Seals was "accustomed to come to our bank and he came into our bank and asked me if I could draw him up a will; I said yes, I can; he said, well, all right; I said, what do you want in it, and he told me, and of course, I took it down in lead pencil just what he requested in his will." This was done at the bank when no one was present except the testator and the banker. Later he made a rough draft of the will and took it to the house of the testator and read it to him and after finding it satisfactory to the testator he went back and wrote it out on a typewriter and then took it to the testator's house and read it to him; that when he went to the house appellant was in the room with testator, but she left the room and went to another and remained while the banker discussed the will with the testator; that appellant was not present during the discussion; that the mind of the testator was good at that time. The banker further testified that the testator kept an account at his bank.
Dr. J.G. Slater was called by the propounders and testified that he was the family physician of the testator and treated him in his last illness; that he was only sick three or four days before his death; that he had known him about eight or nine years and was a neighbor; that he did not notice anything wrong with his mind. Other witnesses testified to the sound mental condition of the testator.
At the close of the evidence for the propounder appellee moved for a directed verdict in his favor, but this motion was overruled by the court. Thereupon appellee, Walter Seals, took the stand and...
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