Wall and Others v. Dimmitt and Others

• Decision Date: 24 February 1903
• Parties: Wall and Others v. Dimmitt and Others.
• Court: Kentucky Court of Appeals

114 Ky. 923

Wall and Others v. Dimmitt and Others.

Court of Appeals of Kentucky.

February 24, 1903.

APPEAL FROM MASON CIRCUIT COURT.

JUDGMENT FOR CONTESTANTS AND PROPOUNDERS APPEAL. REVERSED.

E. L. WORTHINGTON, FOR APPELLANT.

GARRETT S. WALL AND LEWIS APPERSON, OF COUNSEL.

ADDITIONAL AUTHORITIES CITED BY GARRETT S. WALL AND LEWIS APPERSON.

SALLEE & SALLEE, FOR APPELLEES.

COPYRIGHT MATERIAL OMITTED

OPINION OF THE COURT BY CHIEF JUSTICE BURNAM — REVERSING.

This is an appeal from a judgment of the Mason circuit court, rendered pursuant to a verdict of a jury, refusing to probate as the last will of Elizabeth A. Wall a testamentary paper duly executed by her on October 31, 1896. The will was assailed in the court below on the ground that it was procured by the undue influence of the husband and son of testatrix. Mrs. Wall was at the date of its execution 80 years of age, and her husband was then 88 years old. She died about 18 months later, leaving surviving her, as her heirs at law, her husband, Dr. A. H. Wall; her daughters, Mrs. Lydia E. Dimmitt, who had one child, and Mrs. Mary W. Apperson, who had two children; and a son, Garrett S. Wall, who had three children. Her entire estate consisted of a tract of about 450 acres of very valuable land, conceded to be worth in the neighborhood of about $100 an acre. Prior to the making of the will, testatrix and her husband had advanced to each of their children about $18,000. For many years prior to her death her son, G. S. Wall, and his family, had lived with testatrix in her residence in Maysville, Ky. Her relations with each of her children were most cordial, frank and affectionate. In the latter part of the year 1891, Mrs. Wall made a will by which she gave one-third of her 450 acres of land to her son in fee, one-third to Mrs. Apperson in fee, and the remaining third to Mrs. Dimmitt for life, with remainder to her son Hal Dimmitt, and, in case he died without children, then to revert to Garrett Wall and Mary W. Apperson and their children. Hal Dimmitt was at that time, and so continued, a married man, with one child. The will of 1891 was retained by Garrett S. Wall, and was in his custody until two days before the making of the will of October 31, 1896. In the will of 1896, testatrix changed the devise to her daughter, Mrs. Lydia E. Dimmitt, so as to give to Mrs. Dimmitt one-third of the 450 acres for life, and then provided that at her death her executor, named in the will, should sell and convey this tract of land to the highest bidder, and divide the proceeds equally between her six grandchildren, share and share alike. It appears from the testimony that the provisions of the first will were well known by all the family of the deceased, but that the existence of the second will was not known to Mrs. Dimmitt until after the death of her mother, although she testifies that their relations continued to be of the most affectionate character, and that she assisted in nursing her for several weeks immediately preceding her death. Mrs. Dimmitt testified upon the trial before the jury: That, a short time before the execution of the will of 1891, her mother said to her that her father desired her to make a will, and to leave to her only a life estate in one-third of the land, and that at her death it should go to her brother and sister, to which she objected, and that her mother replied that it would be unjust, and she would not make such a will, but would make a will giving the land to witness and her son Hal Dimmitt during their lives, and at the death of both to her grandson, son of Hal Dimmitt. That subsequently she frequently talked with her mother about this will, and was assured by her that the will had been written as she promised. That she never heard of the execution of the last will until some time after the death of her mother, when she wrote to her brother concerning the probation of the first will. That, in response to this letter, Garrett Wall, for the first time, informed her by letter of the will of 1896, in which he assured her that he had nothing to do with it, except to write it. By the same mail, Mrs. Dimmitt received the following letter from her father: "Maysville, Ky., May 7, 1898. My dear daughter: I have read the letter to your brother. I will now answer it. I do know what she did in the provision of the land was after many weeks' reflection, all caused by your prodigal son, who you can not trust with money or anything he can sell to bring money. You have one-third interest during life or its income. As to the Dr.'s thinking it a reflection on him, I have no idea it ever entered her mind. As she certainly had the highest regard and love for him. I am interested in her will and will certainly have it probated. We each had a will, and had I died first every thing was left to her and vice versa. I will be disappointed if she hasn't left everything to me. I have done through life what I thought due to my children and shall die so. I am going to do the best I can for you all whilst I live and try to part in peace. Much Love affectionately your father Alex H. Wall." That after the reception of this letter she went to see her father, and he began the conversation by saying: "Daughter, you can not break your mother's will; it is no use trying; and don't reproach your brother. I am the one to blame. Blame me with the whole...