Reversing.
Esther Whetton, appellant, beneficiary of a $10,000 life insurance policy of Dr. V.J. Sloan, now deceased, was sued by Vernon J. Sloan, Dr. Sloan's son, appellee, in an action seeking cancellation of that part of the insurance policy changing the beneficiary from the insured's son, Vernon, to the insured's unmarried consort, the appellant, the grounds of the requested cancellation being those of mental incapacity and undue influence. From a verdict of the jury and judgment of the trial court in favor of the appellee son, the appellant consort has taken this appeal.
The sum and substance of appellant's ground of appeal is that she was entitled to a peremptory instruction on the trial.
By a companion suit, Dr. Sloan's son contested the will of Dr. Sloan, which will likewise made a substantial provision for the said Esther Whetton, the ground of *Page 182 contest being the testator's mental incapacity. From a verdict of the jury and judgment of the trial court in favor of the son, that is against the will's validity, the will's executor, who represents the consort and all others benefitting from the will, has taken this appeal in this companion case.
The sum and substance of appellant's ground of appeal in the companion will case is that the appellant, the will's executor, was entitled to a peremptory instruction on the trial of this will case.
For the purpose of this appeal, the two cases have been consolidated, but they will be conveniently referred to herein as the will case and the insurance case.
The consolidated record contains 22 volumes of pleadings and proof, much of it irrelevant, and this court has been given 5 voluminous, exhaustive but helpful briefs bearing on the legal questions presented for determination in this litigation now before us.
As indicated above, this is a contest between a decedent's consort and his son over the decedent's insurance and estate. The chief and ultimate issue turned out to be the mental capacity of the decedent. The consort asserted decedent's mental capacity. The son denied it. The son won both cases. The judge and jury decided that the decedent was mentally incapacitated to execute either the beneficiary change over of the policy or to execute his will upon the dates in question.
Dr. V.J. Sloan died in a Cincinnati hospital on September 24, 1942, from endocarditis. His life insurance consisted of a $5,000 policy in favor of his mother, a $15,000 policy payable to the beneficial interest of his appellee son and a $10,000 policy, now in controversy, the latter having been made payable to his appellant consort by a change-of-beneficiary clause executed by the decedent in the last month of his life. His will gave two pieces of his real estate to the son and the remaining piece of his real estate to the consort. The will also divided the residue of the whole estate equally between the son and the consort.
In order to properly appraise this case it appears to be desirable to pick up some of the threads of this closed and broken life in order to ascertain what manner of *Page 183 man existed in the person of Dr. V.J. Sloan, a Newport physician, who performed the principal role of the drama portrayed by the record of this case. He evidently burned the candle of life at both ends and then nonchalantly blew the last wisp of lingering smoke into a bold defiance of serious and sober convention. He married and subsequently separated from three women and finally began a consortium with appellant Whetton in a Cincinnati hotel under an assumed name. This consortium was later continued in Kentucky with ostensible representation to the public that Dr. Sloan and Miss Whetton were man and wife. The record shows that Dr. Sloan contracted a venereal disease, drank copious quantities of whiskey, spent his money freely, loved wine, women and song and at last became a physical wreck through a disability known as cirrhosis of the liver and its attending complications. Death overtook and overcame the doctor at the age of 44 years. In the course of his career, he became the father of two children, the appellee Vernon J. Sloan having been born of the doctor's first wife and a daughter named Patty, now deceased, having been born of the doctor's second wife. But on the other side of the picture, the doctor was a skillful physician, a generous man, a recipient of the firm confidence of many patients and he was a father of undoubted devotion to his two children and their welfare.
While there are many details in this record relating to events and incidents taking place in the doctor's life between 1938 and 1942, yet we are not particularly interested in the bulk of them. But we are particularly interested in the life and conduct of the doctor from June 1, 1942, to September 24, 1942, this being the period that completely encompasses the will's conception and execution and also encompasses the execution of the clause changing the insurance policy's beneficiary from son to consort.
As we see the case that was made out for the appellees against the validity of the will and against the mental capacity of Dr. Sloan, it consisted of (1) expert testimony responding to hypothetical questions and (2) some rather vague incidents of eccentric behavior on the part of Dr. Sloan, none of which occurred at the time of the will's execution or at any time during the day of July 31, 1942. This court has held that opinion evidence or conclusions of experts can not sufficiently sustain a case of a litigant, when such opinions or conclusions of experts are not supported by the proven facts as they existed. Under such circumstances, a directed verdict is propel if the expert evidence forms the foundation of such a case. Mutual Life Ins. Co. v. Dause,
A mere scintilla of evidence was not sufficient to take appellees' case to the jury on this trial, but rather it was necessary for appellees to produce upon the trial evidence of weight, character and substance sufficient to furnish a firm foundation upon which to rest the superstructure of the jury's verdict. See the case of Nugent v. Nugent's Ex'r.,
This court has declared in many cases that allrational people have the right to dispose of their worldly goods according to their own personal desires. This right has been extended to the aged, the infirm, the forgetful and the queer. See the case of Kentucky Trust Co. v. Gore,
This litigation must not be reduced to a trial of the morals of either Dr. Sloan or Miss Whetton. Other tribunals are constituted for that purpose. We are only concerned with the testamentary capacity of Dr. Sloan on July 31, 1942. It was sound and appellees did not prove it otherwise by anything more than a mere scintilla of evidence, if they produced even that much. Therefore, the trial court should have, we firmly believe, peremptorily instructed the jury to find and return a verdict for the appellants on the trial of the will case.
There was no evidence showing any fact or circumstance of mental deficiency on the part of the doctor at the exact time of the occasion of the execution of the informal change clause. He first expressed his intention of changing part of his insurance at least 30 days before September 1, 1942, in the presence of disinterested witnesses and entirely outside of the presence of appellant Whetton. This intention was carried out deliberately and in accordance with his original idea. The doctor had the thought of changing his insurance on his mind three distinct times on September 1, 1942 — once when he called Tillman in the afternoon, once when Tillman came to the doctor's home in response to the doctor's previous call and finally when Tillman returned on the second trip to the doctor's home. There was no wavering from that thought that consistently ran through the doctor's mind three times on that same day and there was no hesitation or irresolution in carrying out his intention. No witness ever said the doctor was under the effect of whiskey or any kind of a drug at the time he executed the change clause.
We have not been able to find any evidence of any word or act on the part of appellant Whetton indicating that she urged, coerced or pushed the doctor into his apparently deliberate act of changing his insurance. The change clause was not executed in great haste nor was it done in cloistered secrecy. The doctor, appellant Whetton, the doctor's mother and two entirely disinterested persons were present. No one raised any suggestion either concerning the doctor's mental competency or his possible susceptibility to undue influence.
This court has firmly committed itself to the principle that the cancellation of an executed contract by a *Page 189
court of equity is the exercise of an extraordinary power and should not be resorted to except in a clear case and on strong and convincing evidence. Lacy v. Layne,
On the question of undue influence, we have defined it as any influence obtained over the mind of a grantor or testator to such an extent as to destroy his free agency, and to constrain him to do against his will what he would otherwise refuse to do. But any reasonable influence obtained by acts of kindness or by argument addressed to the understanding is not in law undue influence. Chrisman v. Quick,
When we measure all of the best evidence, which was produced by appellees and which was relevant to the exact questions in issue, upon the yardstick of the legal principles set out above, we are constrained to conclude that such evidence was entirely insufficient to sustain the jury's verdict or the trial court's judgment in this insurance case. There was no clear and convincing evidence that Dr. Sloan was unbalanced when he signed the change-of-beneficiary insurance clause on September 1, 1942, but there was strong evidence that he knew exactly what he was doing, both in respect to *Page 190 his insurance policy and also in relation to his bank account transaction of that same day. Neither was there any evidence to indicate that any person destroyed the free agency of Dr. Sloan or put him in vinculis upon the occasion of the insurance change or previously thereto. We were unable to find any proof of any suggestion made by any person to Dr. Sloan concerning his insurance policy.
Dr. Sloan must be considered, we think, in the light of just what he appears to have been, namely a person of self-will but not a person of self-control or self-contentment. He was always intelligent, yet he was frequently foolish in the general conduct of his life. It is impossible to commend his conduct, but it is imperative to endorse his mentality, his medical skill and his business acumen. He was the adequate author of his personal affairs, including the execution of his will and the designation of his insurance beneficiaries, and the courts are not allowed to erase one single letter of the structural design of these documents that came out of the plans and blue prints of the doctor's own rationalism.
Wherefore, the judgment of the trial court is hereby reversed in each of these cases for proceedings consistent herewith.