125 Ky. 162 | Ky. Ct. App. | 1907
Opinion op the Court by
Affirming.
John Butler, a resident of Adair county, died in the year 1905. He left no children. He was survived by his wife, Bettie W. Butler, and an adopted: daughter, Grace Butler Bradshaw, and several brothers and sisters, and the descendants, of such brothers and sisters a.s w'ere dead. Shortly after his death his wife offered for probate in the county court a paper, purporting to be his last will and testament, bearing date of March 27, 1905. This will was admitted to probate, over the objection of the brothers and sisters and adopted daughter of John Butler. Thereafter the brothers and sisters of the decedent filed a petition in the county court, setting forth the contents of another will which had been executed by John Butler, and asked that the same be probated as the substance of a lost will. The. widow, Bettie W. Butler, objected to the probate of this paper, and its probate was refused. An appeal was prosecuted to
Although the widow, Bettie "W. Butler, appealed from the judgment of the Adair circuit court, rejecting the will of March 27, 1905, she has later abandoned her appeal, and the only question to be determined now is: “Did the pleadings and proof support the finding of the jury and the judgment of the court in probating the substance of the paper bearing date February —, 1905, offered as and for the last will of John Butler? The evidence discloses the fact that John Butler and his wife, some 22 or 23 years before, they having no children, had adopted, in legal form, the appellant, Grace Butler Bradshaw; she at that time being about five years old. After her adoption he and his wife had treated her as their own child giving her the advantages of a good education, reared her from childhood to womanhood in their home; and, although she had married, she had continued to live at their home with them as a member of their family, with her husband, until the time of the death of her foster parent. The proof shows that the deceased was a vigorous, active, prosperous man; that he accumulated a comfortable estate, was elected to the office of county judge; and that some time in the year
The grounds of contest relied upon to defeat the probate of each of the wills wMch were in contest were want of capacity and undue influence. The paper which the jury found to contain the substance of the true last will and testament of deceased is as follows:
“I, John W. Butler, of Adair county, make and publish this my last will and testament, hereby revoking all former wills made by me.
“1st. I direct that all of my just debts and funeral expenses be paid.
“2nd. I will and devise to my brothers and sisters, who are living, and to the heirs of those who are dead, the sum of five thousand dollars, to be divided between them; that is, one-tenth to my brothers and sisters who are living, and one-tenth to the heirs of
“3rd. I will and devise to my beloved wife, Bettie W. Butler, for and during her life all the remainder and residue of my estate of every kind, real and personal and mixed, including my farm of 192 acres which was conveyed to me by W. E. Frazer, and at her death to our daughter, Grace Butler Bradshaw; but should our said daughter, Grace Butler Bradshaw, die without issue., then wha,t remains of my estate shall be divided in two equal parts, and one-half thereof shall go to my brothers and sisters and their heirs, as directed in the second clause of this will, and the other half shall go to the brothers and sisters of my said wife, or to their heirs.
“4th. I authorize my wife to sell and convey any or all of my real estate and to pass, the fee-simple title to same.
“5th. I appoint my wife, Bettie W. Butler, executrix of this my last will, and request that she he permitted to qualify without security.
“Executed as my last will and testament, this 20th day of February, 1905.
“[Signed] John W. Butler. •
“Witness: R. F. Paul. W. A. Coffey.”
The grounds relied upon for reversal by appellant are numerous, but we will notice only those grounds which appellant’s counsel contend would authorize a reversal.
Appellant’s first objection is that the circuit court permitted appellees to amend the statement which they had offered for probate in the county court, as containing the substance of the will of date February 20, 1905, after the case had been appealed to the circuit court and during the progress of the trial. It
In the case of Steele, etc., v. Price and wife, 44 Ky. 58, where a paper offered for probate in the county court as and for the substance of the last will of William Steele, contained a provision giving to his niece, Elizabeth Price, “my two slaves, Patsy and Mary,” and upon appeal to the circuit court the jury found that instead of the words “my two slaves, Patsey and Mary,” the words “my slaves, Lucy, Mary,, and Bob,” should he inserted; it was contended that this change furnished ground for reversal. Chief Justice Marshall, delivering the opinion, said: “Upon
In the case at bar the paper offered for probate in the county court, as containing the substance of the February will, gave the fee to appellant, just as the paper offered for probate as containing the substance of the Steele will gave to his niece two slaves; and in the circuit court, in the case before us, appellees were permitted to amend the statement so as to change the interest which appellant had in the estate from that of a fee to that of defeasible fee, her interest in the estate being, thereby, diminished; whereas, in the Steele case above referred to, the change was from two slaves to three slaves, thereby enlarging the interest of the legatee under the will. We are of opinion that, if it was not error for the jury to find that a devise to a particular legatee should be in
Appellant’s next contention is that the substance of the February will was not sufficiently proven to authorize the jury to find it to be the true last will and testament of the deceased. Courts have, with a degree of uniformity, held that in order to establish a lost will, its execution, substance, and that it was not revoked, must be clearly, fully, and satisfactorily established; but we take it that these facts must be established to the satisfaction of the jury, who are the triers of the facts, and that it would not be proper for the court to say to the jury that,. before they could find the paper offered as and for the substance of the will to be the true last will and- testament of deceased, the proof should be full, clear, and satisfactory. The execution of a lost will must be proven the same as the execution of a will that is not lost. Its substance, must be proven to the satisfaction of the jury the same as the substance of any other lost instrument of writing would be proven, and it must be established to the satisfaction of the jury that it was not revoked.
On the question of the execution of the will in February, appellant makes no serious contention but that the will was executed in due form. The proof, upon this point is ample', full, and complete. As to the substance of this will, we are of opinion that it likewise is clearly proven; for, while it is true that the draftsman omitted to incorporate in the’paper, which was offered to the county court for probate, one of the provisions which it contained when finally submitted to the jury in the circuit court, as said in the Steele case, supra, it was the -province of the jury to determine what were the provisions of the Feb
Appellant insists with much earnestness that the court erred in permitting testimony to go to the jury as to the provisions of the January will. This point is not well taken, for .the reason that one of the grounds of contest was that decedent did not have capacity sufficient to make a will. In order to show capacity, it was proper for the propounder to show that the testator was acting with a fixed purpose in executing the will which the jury found to be his true last will and testament; and the fact that the provisions of the. January will were practically the same as those of the will executed in February might properly go to the jury as an evidence that the testator was acting with a fixed purpose. The latitude allowed in the introduction of testimony in will contests is very broad, and it has frequently been held competent to show that decedent had made other wills similar to the one in contest, for the purpose of establishing capacity..
It is insisted as evidence of want of capacity that decedent was unable to express himself above a whis
As it has been held that where the provisions of a will are unnatural this fact may be given to the jury as an evidence that the testator was unduly influenced, or did not have sufficient capacity to make a will, so- where the provisions of a will are natural and just, this fact may or should be considered by the jury in determining whether or not deceased was competent to make a will; and, in doing so, was not unduly influenced. It is in evidence that decedent’s relatives had rendered him- valuable assistance in his political campaigns-, and bad otherwise been of service to him in his public life, and he had frequently said that, as a reward for these services, he intended them to have a portion of his estate. These statements were made by him at a time when he was strong mentally and physically, and hence, in making the provision for these relatives which- he did in his will, he was simply carrying out a purpose of long standing.
We take it that no one will question the wisdom or justness of that portion of his will in which he gives the remainder of his estate to his wife for life. During the long years of their married life, she had
Taken, then as a whole, the will carried out an express purpose of long standing with regard to his brothers and sisters. It made a most natural and reasonable provision for his wife, and, at her death, gave to appellant, his daughter by adoption, his entire estate during her life; and, being both reasonable and just, the provisions of this will, when taken in connection with other evidence, tend to support the theory and contention of the propounders that deeedent had sufficient capacity to make a will.
The instructions given properly presented to the jury the questions in issue, and we are of opinion that the evidence amply supports the verdict of the jury; and there being no error prejudicial to the rights of appellant, the judgment is affirmed.