295 S.W. 885 | Ky. Ct. App. | 1927
Reversing.
This is a will contest based on the usual grounds of lack of mental capacity and undue influence. There have been two trials in the lower court. The first resulted in a hung jury and the second in a verdict signed by nine of the jurors setting aside the will. The propounders have appealed.
The testator, M.G. Berry, by his will left all his property to his widow the appellant, Mary J. Berry. She was his second wife. He had no children either by her or his first wife and the contestants, the appellees, are his collateral kin. The court submitted both the questions of mental capacity and undue influence to the jury. It is urged as grounds for reversal that the court erred in so doing and that it should have given a peremptory instruction to find for the will. So far as the question of undue influence is concerned, the court should not have submitted this issue to the jury. The testator and the appellant, his widow, were married about a year prior to his death. The record probably tends to show though very vaguely that the appellant, Mary Berry, formerly the widow Kinner, sort of engineered the marriage between herself and the testator. But the record also tends to show that they lived very happily after their marriage. The record also shows that the testator, just before he had the will now in dispute drawn, informed his counsel that he had had a will, but had destroyed it, since it was not satisfactory to his family. On the basis of these two incidents, appellees seriously argue that there was evidence of undue influence to go to the jury.
It is the settled law that the evidence must show, not only that there was an opportunity to exercise undue influence, *621
but must also establish directly or circumstantially that undue influence was exercised. Seals v. Seals,
So far as the question of mental capacity is concerned, there was a scintilla of evidence under the rule heretofore laid down by this court in will cases to carry this case to the jury. But, whether or not there was sufficient evidence to sustain that verdict, we expressly do not decide, since the evidence on the next trial may be stronger than it was on the last trial.
Judgment reversed, with instructions to grant the appellant a new trial in conformity with this opinion.