Appeal from the Circuit Court of Saline County; the Hon.
TRAFTON DENNIS, Judge, presiding. Judgment affirmed.
Elvis B. Adams, executor of the Estate of Esther A. Lightner, deceased wife of Dr. Joseph C. Lightner, sought by sworn motion to strike the renunciation of the will, filed by Joseph C. Lightner the day following the entry of an order admitting the will to probate. The Executor was joined in the motion by each of the legatees and devisees, except Dr. Lightner; and it was therein contended that by reason of a written agreement, incorporated therein, between Dr. Lightner and the other devisees and legatees, previous to the probate of the will, his renunciation should be stricken. Dr. Lightner filed a sworn answer to the motion, alleging a fiduciary relationship between the nominated executor and Dr. Lightner, a lack of possession and apprisal of material facts and failure of Adams to make a full disclosure of the content of the will and the extent of the property involved; and that he was induced to enter into the agreement to his detriment, disadvantage and loss.
The evidence was heard, briefs submitted, and judgment entered, denying the motion to strike the renunciation and canceling the contract, from which judgment this appeal has been perfected.
Lightner, an 80-year-old retired physician, and his wife were living in their winter home in Sarasota, Florida, when his wife became seriously ill and was hospitalized in Sarasota in January 1965. She remained in the hospital, in serious condition, until her death on March 17, 1965. Her brother, Elvis B. Adams, and his wife, Laura, arrived in Sarasota, from their Illinois residence, early in March, and stayed there approximately a week, in the Lightner home with Dr. Lightner, leaving Sarasota, after calling on Mrs. Lightner at the hospital on the morning of March 9. While there, each day Adams visited his sister in the hospital, and at her request itemized for her the property she advised him she owned for the purpose of making a will. The will was executed by Mrs. Lightner after Adams departed from the hospital on March 9, 1965, and was mailed by the attorney who prepared it to Adams at his home in Norris City, the will arriving on March 14. Until after his arrival at his Harrisburg, Illinois home, on Sunday, March 21, Dr. Lightner had no knowledge of his deceased wife having made a will. Mr. and Mrs. Adams had at his request opened up his Harrisburg home, where they remained with Dr. Lightner until some time after March 26. Funeral services for Mrs. Lightner were held at Harrisburg on Tuesday, March 23.
The Lightners had been married more than 30 years, and for a time after the marriage Dr. Lightner operated a hospital at Harrisburg, and Mrs. Lightner was manager, bookkeeper and laboratory technician therein. They retired in the late 1930's and thereafter they divided their time between Harrisburg and Sarasota.
Mrs. Lightner's will contained 10 provisions; these provisions with the property included, with its source are as follows: 1. Payment of debts, funeral expenses and costs of administration by executor. 2. Devise to Elvis B. Adams of all leases and interests in leases, specifically including oil, gas or mineral leases, and all real estate. This included testatrix' interest in 40 acres of land, held in tenancy-in-common with Dr. Lightner and 1/4th mineral interest in 240 acres of land, on which oil is being produced; the Doctor had given Mrs. Lightner the 1/4th mineral interest in this tract which he owned in fee, before any oil was produced therefrom. 3. Bequest to Elvis B. Adams of a 1959 Chrysler sedan which Dr. Lightner had purchased for Mrs. Lightner. 4. Bequest to sister, Nettie DeBoard, of $6,500 government bonds, which had been bought personally by Mrs. Lightner, a set of diamond ear screws and a mink coat, both of which were gifts from Dr. Lightner. 5. Bequest to Laura F. Adams of Platinum ring set with diamonds, which was an engagement ring given by Dr. Lightner, a ring set with 2 diamonds, which had been a gift from Dr. Lightner, a set of china which Mrs. Lightner had purchased, and an antique table which had been a gift of a neighbor, and clothing and personal effects. 6. Bequest to Betty Jean Black, daughter of Elvis B. Adams, of diamond set wristwatch, a gift of Dr. Lightner. 7. Request that wedding band be buried with decedent. 8. Bequest to Dr. Lightner of her interest in furniture except antique table; the record is uncontradicted that Dr. Lightner had acquired and owned all furniture except the antique table. 9. Bequest to Elvis B. Adams of residue and remainder of estate; this consists of 2 ceramic kilns, purchased by Mrs. Lightner. 10. Nomination of Elvis B. Adams as executor with power of public or private sale. All other property in which Mrs. Lightner had an interest at the date of her death was acquired by Dr. Lightner and held in joint tenancy with him, except a life insurance policy in which her brothers and sisters were beneficiaries.
According to Elvis Adams' testimony, on Monday morning, following Dr. Lightner's arrival in Harrisburg, Dr. Lightner told Adams that he guessed Mrs. Lightner's will was "in her lock box uptown," when Adams replied that he had received a will by mail from Sarasota, and that after breakfast they would go out where they could have quiet and peace without interruption and Dr. Lightner could read the will. Adams further testified that following breakfast he and Dr. Lightner got into Adams' car and Adams drove out into the rural area, parked the car on a country road, handed Dr. Lightner the will; that Dr. Lightner read it, and stated there was certain property which he wanted, to which Adams replied he would arrange it provided Dr. Lightner paid the outstanding obligations and funeral expenses and accepted the will. *fn1 He further testified that Dr. Lightner handed the will back to him, they returned to Harrisburg, and Adams privately conferred with an attorney whom he advised of the terms agreed upon so that a contract could be made; that on the following morning Dr. Lightner pointed out that there would be funeral expenses in Harrisburg, and Adams agreed to divide them, and so advised the attorney.
Adams further testified that on March 26 he and Dr. Lightner went to the attorney's office where an agreement had been prepared; that a copy was given to each of them, and it was read aloud to them, and Dr. Lightner read it for himself, it was then signed by each of them in quadruplicate, and the signed copies delivered to Adams who had his wife, daughter and sister affix their signatures, and returned them to the attorney.
Dr. Lightner testified that he first learned of a will about two hours after the funeral, March 23, when Adams in the presence of his wife Laura Adams, at his home in Harrisburg, said to him, "Esther has made a will" or "Esther made a will while we was down in Florida," at the same time pulling his coat open, so that Dr. Lightner could see a paper or envelope in his pocket, and that he was unable, due to an affliction of his vision, to tell which it was. He testified that there was no further discussion of the matter that evening except for Mrs. Adams saying, "Doctor, I hope to God you don't contest the will"; that he was stunned, tired and shocked, and the following morning Adams said, "Let's get in my car and go out and talk this will over discuss it." He continued, that Adams drove by a circuitous route to a point in the country and pulled off to the side of the road between two cornfields, when Adams pulled a paper from his pocket, faced him and said, "Now I will read the will"; that "He said after the funeral expense, then started off by giving him the automobile, Nettie DeBoard the ear screws and his wife the diamond engagement ring and the double-set diamond ring and also the wedding ring and then his daughter was supposed to get the little wristwatch. He also mentioned the chinaware and her clothes and I believe that's all of any significance that he mentioned"; that he mentioned the mink coat, made no mention of real estate or oil wells, or anything other than the automobile that Adams was to get; and that Dr. Lightner never had the will in his hands.
According to Dr. Lightner, "I said, `Elvis, I would like to have the engagement ring and the wristwatch, especially for sentimental purposes.' He says, `Doc, I can't do that. Esther willed the watch to my daughter and she willed the engagement ring to my wife, Laura.' I said, `Elvis, I would like to have them.' He said, `Well, Doc, I can't do that without putting it in writing or making some kind of a contract.' I said, `That is not necessary. You've known me for thirty-six years and why couldn't we do that without having to do anything like that.' He said no we'd better have it in writing. There was nothing more said. I didn't hear anymore until a couple of days"; and that he told Adams that he had paid the funeral expenses in Florida, and agreed to pay them and half the funeral expenses in Harrisburg in exchange for the watch and ring. He testified that on the following morning Mr. and Mrs. Adams took him for a drive and that while in the car, he mentioned the jewelry and Mrs. Adams said, "Doctor, I hope you don't contest the will" and that he replied, "Laura, as far as I know now, the way Elvis read it to me, I don't have any idea of doing so." His further testimony was that after he had aroused from a nap on the afternoon of the 26th, Adams said, "Let's go up to Judge Hancock's office, he has some papers that he wants us to sign," that they were there and he "followed along" as the contract was read, that he could not see to read it and understood that it concerned only the watch and ring, which, for sentimental reasons, he wanted.
That Dr. Lightner was tired and under emotional strain and had taken a few "nembutals" during this period is undenied in the record, as is the fact that both his vision and hearing were impaired. The record substantiates the fact that at no time was he advised nor had knowledge of either his right to renounce the will or his right to a spouse's award under which he could have selected the items he wanted for sentimental reasons; the oil wells and real estate interests were never discussed. He testified that he was of the impression that the will only disposed of the items he says were mentioned in the conversations with Adams. He was never given a copy of any will and the will was not presented to him in the attorney's office when he signed the agreement; he testified that he was then asked if he had read the will and answered that Adams had read it to him, but that he later determined that Adams had only read parts of it to him. It is to be noted that since he owned the furnishings and furniture, he would take nothing by the will, and that the will provided for debts and funeral expenses to be paid from the assets of the estate.
The agreement executed by Dr. Lightner, Elvis B. Adams, Laura F. Adams, Nettie A. DeBoard and Betty Jean Black, which was offered in support of the motion to strike the renunciation and claims filed by Dr. Lightner for funeral expenses, a hospital bill of Mrs. Lightner and for special nurses in amounts which had been paid by Dr. Lightner, provides that in addition to the property given Dr. Lightner under the will, the ring and watch bequeathed to Mrs. Adams and Betty Jean Black, respectively, were to be delivered to him, and he agreed to pay all debts, expenses in connection with the funeral up to the time the body arrived in Harrisburg, one-half the Harrisburg expenses, neither renounce nor contest the will, make no claim for spouse's award or any other claim against the estate; the other signatories agreed to the distribution of the ring and watch to Dr. Lightner and that they would not contest the will.
As a practical matter under the terms of the purported agreement, Dr. Lightner agreed to not only give up his spouse's award, in a minimum amount of $1,000 (the will not having any provision in lieu of the award), *fn2 but his right to renounce, the exercise of which could have resulted in his taking one-half the entire estate, *fn3 subject to the debts, funeral expenses and costs of administration, but also to voluntarily pay the debts and greater portion of the funeral expense from his personal funds, all in consideration of the ring and ...