104 Ky. 121 | Ky. Ct. App. | 1898
deuvered the opinion oe the court.
This is a contest over a paper purporting to be the will of Richard Ellis, which was executed on May 5, 1885. It' was probated in the county court. On the first trial in the circuit court, the jury found that the paper was not his will. The court granted a new’ trial, and set aside the verdict. It is insisted that it had no power, under the law, to grant a new trial. Section 4859, Ky Stat., requires all necessary parties to be brought before the court, and it is to try the question unless a jury is demanded, “and the final decision given shall be a bar to any other proceeding to call the probate or rejection of the will in question, — subject to the right of appeal to the court of appeals as hereinbefore named.” Section 4850, Id., is the section to which the foregoing section refers, part of which reads as follows: “The circuit court shall try both law and fact unless a jury be required. The court of appeals shall not hear any matter of fact pertaining thereto, other than such as may be certified from the circuit court; and the same effect shall be given to the verdict of a jury in a will case a‘s is given to
It is hard to conceive that, although the Circuit Court may have committed such an error during the trial of a will ease as would authorize this court to reverse, yet the Circuit Court would be powerless to correct that error. If this were true, much delay would result to the parties interested, and great expense might follow. Section 340, Civil Code, authorizes new trials to be granted in an action or proceeding. Section 838, Id., provides that it shall regulate the pleadings and practice in civil cases. We are of the opinion that the Circuit Court has the same right to grant a new trial in a proceeding to probate a will as it has in other civil cases. The grounds filed with the motion for a new trial were numerous, but it does not appear what the court’s reasons were for granting it. Twenty-odd intelligent men, who had known the testator for years, testified as to his capacity to make a will. They were merchants, farmers, doctors, etc. While the contestants offered the testimony of many witnesses, many of whom knew the testator as well as did the witnesses introduced by the propounders, yet only four or five expressed an opinion as to want of capacity in the testator to make a will, and some of the reasons "which they gave were not very convincing that their opinions were of much value. The testator had been a shoemaker, a farmer, and a successful merchant,
On the second trial the same testimony was heard as on the former one, with some additional testimony; but it was not calculated to change the opinion of the court as to the capacity of the testator to make a will. The court did not give an instruction upon the question of undue influence for the reason that there was no testimony upon which to base it. There was not the slightest evidence that anybody had ever endeavored to influence the testator to make a will, nor as to how it should be made. Neither was there any testimony tending to show that he was dominated by the beneficiary of the will. Under such circumstances, the court did not err in failing to give an instruction upon that question. If a person has testamentary capacity, he can
Counsel complains that the cohrt erred in allowing the vendee, Nancy Ellis, to testify that she did not know that her husband had made a will until after his death, and that she had never heard that two deeds had been made by Wiggins. It is unnecessary to say whether or not the court erred in thus allowing the widow to testify, because there was no objection to that part of her testimony. The judgment is affirmed.