183 Ky. 238 | Ky. Ct. App. | 1919
Affirming.
This action arose from a contest of-the will of Lizzie H. Gay, who died in Clark county, in the year, 1917. She was a widow, about sixty-eight or sixty-nine years of age, at the time of her death, but the evidence does not make it appear, how long she had. been a widow, further, than fifteen or sixteen years. She was the mother of two sons, one of whom Benjamin P. Gay, died in the year 1905, leaving a widow, and three children. The three children of Benjamin J. Gay, the elder of whom is now twenty-four years of age, and the others, twenty and seventeen, respectively, are the contestants of their grandmother’s will. The other son of the testatrix, is Jacob D. Gay, one of the contestees. He is married, and has a son, Jacob D. Gay, Jr., who is seven or eight years of age, and also, one of the contestees. Jacob D. Gay, Sr., has always made his home with the testatrix, and Gatewood Gay, made his home with her, from the spring of the year, 1913, until her death. His brother and sister, have made their home with their mother, in Lexington, Ky. The will of testatrix, was executed by her, in Lexington, Ky., on the 16th day of August, 1916. A codicil to it, altering it in a minor particular, as to the disposition of nineteen acres of land and increasing a devise to the Kentucky Female Orphan School, from $2,500.00 to $3,500.00, was executed, at her home, on February 6, 1917. The contestants owned, by inheritance from their father, about 105 acres of land, of the value of $200.00 per acre, subject to the dower right of their mother. They were, also, owners of one-half of a tract of about four hundred and fifty acres of valuable lands; their uncle, Jacob D. Gay, being the owner of the other undivided one-half. They were the owners of very little personal property, and the testatrix had, shortly after the death of their father, placed two valuable tracts of land, in the hands of a trust company, with the direction, that the proceeds be applied to the maintenance and education of her grandchildren. After Gatewood Gay, became grown, she put these lands, in his control, for the same purpose. When the testatrix died, she was the owner of about eighteen hundred acres of very valuable lands, and about thirty-one, or thirty-two thousand dollars ’ worth of personal property. By her will, she devised to her son, Jacob D. Gay, Sr., the home, where he and. she and Gatewood Gay lived, consisting of nearly one
The three grandchildren, becoming dissatisfied with the disposition, which their grandmother had made of her property, by her will, instituted a contest, and upon a trial, in the circuit court, after the contcstees proved the due execution of the will, and after hearing all the evidence offered by the contestants, touching the invalidity of the will and codicil, the court sustained a motion for a directed verdict, in favor of the contésteos, and under a peremptory instruction, the jury 'found the will and codicil to be the last will and testament of testatrix, and the court so adjudged.
The contestants have appealed, and the only question before us, is whether there was any evidence offered, which required a submission of the cause to the jury. The contestants sought to set aside the will upon the usual grounds, of a want of testamentary capacity, in the testatrix, and that she was unduly influenced, by some other person or persons, in the execution of the will. It wh. not be possible, in an opinion, to recite all the circumstances offered as evidence, nor will it be profitable to discuss them, but, we will attempt to advert to the main contentions of contestants. The rulé of almost universal application, and acceptation to be applied, in determining, whether a testator has testamentary capacity, is, that he must have mind and memory, to know his property and its value; to know the natural objects of his bounty and his duty to them; to make a rational survey of his property and to dispose of it, by his will, according to a fixed purpose of his own. Rasdall v. Brush, 31 R. 1138; McDonald v. McDonald, 120 Ky. 211; Woodford, etc. v. Buckner, 23 R. 627; Lancaster v. Lancaster, 27 R. 1127; Wise v. Foote, etc., 81 Ky. 10; Murphey’s Extr. v. Murphey, etc., 23 R. 1460; Walls, etc. v. Walls, etc., 30 R. 948; Bradshaw v. Butler, 30 R. 1249. The proof, offered by contestants shows, that the testatrix was a woman of fine business sense and acumen ; that she had, by inheritance, received eight or nine hun
It is insisted, that there was proof of want of mental capacity, and of an undue influence exerted upon the testatrix, which will fortify the evidence of inequality of disposition. The evidence, clearly shows, that the testatrix knew and appreciated her duties to the contestants. She was always kind and affectionate toward them; she made them presents, and kept them at her home, for considerable periods of time, and set apart, in the hands of a trustee, during their extreme youth, lands, the rent of which was worth $1,000.00 per year, for their maintenance; she took the contestant, Gatewood Gay, to her home for several years before her death; loaned him money, and furnished him lands to graze and cultivate, and by her will, gave him and his sister and brother, personal property, worth $18,000.00 and lands of the value of more than $100,000.00. The fact, that she saw fit to devise to her only son, who had always lived with her, much more property, than she devised to contestants, did not prove, that she lacked, either mental capacity,- or that she was moved by an undue influence, when it is considered, that it was her legal right to make such a disposition. It is complained, that the testatrix placed contestants’ property, into the hands of a trustee, and entailed it. She provided for a trustee until they should marry, or become thirty years of age, and there is nothing to indicate, that this was not a just disposition. She gave her reasons for this, to Gatewood Gay, and while she may have made a mistake, it was not a delusion, but founded to some extent in fact. The fact, that a testator placed the devised property, in entail, has never been considered evidence of want of capacity, but, rather the
It was proved, that more than twenty years before her death, her son, Benjamin, was afflicted with rheumatism, and that she represented, that she had a dream, in which the words, “pile on fagots” appeared, and she interpreted this to mean, that she should heat his room, with a strong fire, which she did, and he became well. After his death, in 1905, she dreamed, that he appeared to hem with a bridle in his hand, and said, “wash your reins; ’ ’ that she interpreted this to mean, that she should take control of the lands, which she had placed in the hands of his widow, to assist in the maintenance of her family, and put them, in the hands of a trust company, for the same purpose, which she did. In 1905, when her son, Benjamin, died, she had a dream, in which the date of the birth of her son Jacob, appeared in golden letters, and'she interpreted this to mean, that she should be comforted, as she yet, had something to look forward to and live for. About 1907 or 1908, her son, Jacob, was sick in a' hospital, when she had a dream, in which she washed her hands, twice, and then a third time, and they became clean, and she interpreted this to mean, that he was going to recover. In 1906 or 1907, her son, Benjamin, appeared to her in a dream, and advised her to put her tobacco crops, in the pool, which she did. In 1914, when the war, between Prance, Eussia, England ar.d Germany, Austria and Servia was fairly begun, she dreamed, that she saw a bear pressing against a door, and that the door fell. This, she interpreted, to mean, that the Eussians were going to win the war. An alienist testified, that in his opinion, a person having dreams, such as those, and acting upon them, was insane. The hypothetical question propounded to the alienist did not contain a statement of all the facts, in regard to testatrix, of which there was some evidence, conducing to prove, and the question embraced some assumptions of which there was no proof, and for that reason, his answer, was not competent evidence, but, the cross-examination somewhat supplied the deficiencies of the question, and the answer will be treated as competent. It will be observed, that these dreams, were from ten to twenty years before
It is ingeniously and ably contended, that while no circumstances in evidence, taken singly, is sufficient to amount to evidence conducing to prove, that the testatrix acted in the making of her will, under an undue influence exerted by Jacob D. Gay, or his wife or some other, that the proof of all the facts and circumstances in evidence, together, amount to evidence, from which an undue influence might be inferred. Walls v. Walls, supra. It will be .remembered, that an undue influence sufficient to invalidate a will, must be an influence exerted over the testator, at some time or other, which continues at the
The judgment is therefore affirmed.