Wall v. Dimmitt

• Decision Date: 13 June 1906
• Parties: WALL et al. v. DIMMITT et al.
• Court: Kentucky Court of Appeals

94 S.W. 639

WALL et al. v. DIMMITT et al.

Court of Appeals of Kentucky.

June 13, 1906

Appeal from Circuit Court, Mason County.

"Not to be officially reported."

Petition by Alexander H. Wall and others for probate of the will of Elizabeth A. Wall, deceased, in which Lydia E. Dimmitt and others filed objection. A judgment was entered denying probate, and proponents appeal. Reversed and remanded.

G. S Wall, Lewis Apperson, E. L. Worthington, and T. R. Phister for appellants.

W. D Cochran, C. L. Sallee, T. D. Slattery, and Hazelrigg Chenault & Hazelrigg, for appellees.

PAYNTER J.

This case arises from an effort to probate a paper claimed to be the last will of Elizabeth A. Wall. The case was here on a former appeal from a verdict and judgment rejecting it as her will. Wall v. Dimmitt, 114 Ky. 923, 72 S.W. 300. The court reversed the case, and in doing so, said: "And when we eliminate the declarations of testatrix, testified to by Mrs. Dimmitt, there is very little evidence left in the record bearing upon the question of undue influence--certainly not enough to authorize the conclusion that the will was the result thereof. We are therefore of the opinion that the verdict upon the case, as presented in the record, is palpably against the weight of the evidence and for this reason the judgment must be reversed." This court held on the former appeal that the lower court erred in excluding from the consideration of the jury the evidence of Dr. Alex Hunter, Conn Guilfoile, and William G. Johnson, as to declarations made to them by Dr. A. H. Wall. On the trial in the lower court the evidence of these witnesses was admitted. Outside of the testimony of these witnesses the evidence was substantially the same as on the former trial. Dr. Hunter testified that he had a conversation with Dr. Wall shortly after latter had set his grandson up in business at Cottageville or Rectorsville in which conversation he said "that he had started Hal several times in business and that he had failed each time and that he (Dr. Wall) had told him (Hal) that if he did not do better this time and quit his habits and go to work, that he was not going to have anything more to do with him and that he was going to cut him off and see that he did not get any of his estate. William C. Johnson testified that he and Dr. Wall had a conversation in 1896 and in the conversation he told Dr. Wall that he had loaned Hal some money and in the conversation Dr. Wall said that Hal had been in the habit of coming to Maysville and asking him to let him have money, and that he would let him have...