Warnick v. Childers
| Decision Date | 30 September 1955 |
| Citation | 282 S.W.2d 608 |
| Parties | J. W. WARNICK et al., Appellants, v. Birdie Vaughan CHILDERS, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Chesley A. Lycan, John T. Diederich, Diederich & Lycan, Ashland, for appellants.
Clyde L. Miller, Louisa, Kit C. Elswick, Lexington, for appellee.
By this action the appellants have contested the will of William Warnick on the grounds that he was unduly influenced in its execution and lacked mental capacity to make it. At the trial the court refused to submit to the jury the undue influence issue. The jury found the will to be valid.
The will under attack was executed by decedent on September 29, 1952, some three months before his death, and when he was about 75 years of age. The will is in simple form and contains the customary clauses relating to debts and funeral expenses. The bulk of the estate was given to a niece, Bertie Childers, who received about $11,851.46 cash, the decedent's home place with about 30 acres of land, and other personal property. The remainder of the estate, which consisted of a tract of land adjoining the home place (valued at about $4,000 by the contestants), was devised per stirpes to the 16 children or grandchildren of the testator's deceased brothers and sisters. It is the latter class who contest the will and, as appellants, prosecute this appeal.
On this appeal, appellants state in their brief that the finding of the jury on the issue of mental capacity was 'contrary to the evidence,' and that the issue of undue influence should have been submitted to the jury. However, a ground in the motion for a new trial was 'the verdict is not sustained by sufficient evidence and is contrary to law' so we will briefly discuss the evidence in order to determine whether it was sufficient to sustain the verdict.
The decedent lived in the vicinity of Richardson, and Bertie Childers, who received the bulk of the estate, lived about a mile from him. During the latter part of 1951 and a part of 1952, decedent, Warnick, would stay with her at night and return to his home during the day. However, during a portion of 1952, through his period of sickness and until his death, Warnick stayed the entire time with appellee who cared for him and ministered to his needs.
To support the contention that Warnick did not have mental capacity to execute a will, appellants introduced numerous witnesses who testified concerning specific instances which indicated to them that decedent lacked requisite sanity. Some of the things they pointed out were that he could not carry on a connected conversation, heard strange voices, was afraid, forgot names, could not remember directions, and occasionally got lost. We evaluated the legal effect of acts such as these in Dixon v. Dixon, 236 Ky. 608, 33 S.W.2d 611.
Considerable testimony related to his physical condition and there is no doubt that in his latter years his health was not good. Dr. William F. Marting, a well qualified physician who had practiced since 1897, testified that he treated decedent at various times between 1944 and 1948 for the disease of arteriosclerosis, and stated that in 1948 the illness had progressed to such a stage he concluded the decedent was of unsound mind. We have said that proof of previous insanity, such as that contained in Dr. Marting's testimony, without evidence of its continuity down to the day of the will's execution does not invalidate the will. Pfuelb v. Pfuelb, 275 Ky. 588, 122 S.W.2d 128. There is some evidence introduced on behalf of appellants which, under some conditions, might tend to show continued insanity from 1948 to 1952, but it is in marked conflict to the testimony offered by appellee, and even the testimony given by the medical experts is in sharp contrast.
The proponent of the will was able to show that decedent transacted in good fashion his own business up until the time of his death. The last transaction was a contract to build and pay for a fence around a cemetery lot. Some three months before his death he visited the office of an attorney--who had known him many years and who had handled his legal business for about fifteen years--and told him that he desired to make his will, gave him directions concerning disposition of his property, and then executed it. This attorney testified he was of opinion that decedent was of sound mind. A bank official who cashed a U. S. Savings Bond for decedent about ten minutes after the will was executed testified that he was of the same opinion. Decedent's regular physician, Dr. Forrest Shely, also a qualified physician, who treated him during his last...
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Bye v. Mattingly
...to make a will is less than that necessary to make a deed, Creason v. Creason, Ky., 392 S.W.2d 69 (1965), or a contract. Warnick v. Childers, Ky., 282 S.W.2d 608 (1955). [25] To validly execute a will, a testator must: (1) know the natural objects of her bounty; (2) know her obligations to ......
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Bye v. Mattingly, 97-SC-208-DG
...to make a will is less than that necessary to make a deed, Creason v. Creason, Ky., 392 S.W.2d 69 (1965), or a contract. Warnick v. Childers, Ky., 282 S.W.2d 608 (1955). To validly execute a will, a testator must: (1) know the natural objects of her bounty; (2) know her obligations to them;......
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Getty v. Getty
...of substances resulted in a fixed and constantly impaired mental state "down to the day of the will's execution[.]" Warnick v. Childers, 282 S.W.2d 608, 609 (Ky. 1955). For instance, in Pardue v. Pardue, 312 Ky. 370, 227 S.W.2d 403, 405 (1950), for purposes of assessing capacity, a trial co......
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Ward v. Norton
...Ky., 287 S.W.2d 146. The right of rational people, including the aged and infirm, to make a will is jealously guarded. Warnick v. Childers, Ky., 282 S.W.2d 608. See also Bickel v. Louisville Trust Company, 303 Ky. 356, 197 S.W.2d 444; Teegarden v. Webster, 304 Ky. 18, 199 S.W.2d 728; Burges......