185 Ky. 60 | Ky. Ct. App. | 1919
Opinion of the Court by
Affirming on the appeals of Ben Harned, etc v. Belle Wise, etc., and Elisha Harned, etc. v. Belle Wise, etc., and reversing on the appeal of Belle Wise v. Elisha Harned, etc.
These three appeals involve the validity and construction of the will of Hundley Troutman, deceased, and will be considered in one opinion.
The will in question is as follows:
“Jewish Hospital,
“Louisville, Ky., Feb. 23, 1917.
“I wish to appoint Mrs. Belle Wise, my half-sister, as my executrix without bond.
“I wish to leave her the entire control and division of my estate. I direct her to make the following bequests: To the children of Mrs. Ruth English (deceased) each ($1,000) one thousand dollars. To William Geohegan ($500) five hundred dollars.,
“Hundley Troutman,
“By G. P. Grigsby.
“Witnesses:
“Emma E. Berlinsky, R. N.
“Dr. H. S. Harned.”
The will was sustained by the jury and we shall first discuss the rulings of that trial.
The point is made that the court erred in assuming in its instruction that the will was duly executed, and in telling the jury to find for the will unless they be
Under our statute the will may be signed by the testator or by some one else in his presence and by his direction. Sec. 4828, Ky. Statutes. Here the physician who signed the testator’s name, as well as the attesting witnesses, all say that the testator requested the physician to sign for him. These witnesses are not contradicted or impeached. Hence, the court did not err in assuming that the will was duly executed by the testator. Bramel v. Bramel, 101 Ky. 64, 39 S. W. 520; Woodford v. Buckner, 111 Ky. 241, 63 S. W. 616.
Another insistence is that the contestants were entitled to a peremptory instruction. We have carefully considered the evidence, and while there were certain circumstances tending to show mental incapacity and undue influence, there was direct and positive evidence to the contrary. In view of this conflict in the evidence, the questions were for the jury and not for the court, and the court did not err in so holding.
Since the testator was disposing of his own estate it is clear, we think, that he did not intend merely to direct Mrs. Wise to bequeath the sums named to the English children and to William Geohegan, but used the word “make” in the sense of “pay” and that the clause should be construed as if it had read, “I direct her to pay the following bequests.” Hence, the bequests took effect and were payable'immediately upon the testator’s death.
In the cases of Ben Harned, etc. v. Belle Wise, etc., and Elisha Harned, etc. v. Belle Wise, etc., the judgments are affirmed. On the appeal of Belle Wise v. Elisha Harned, etc., the judgment is re,versed and cause remanded with directions to enter judgment in conformity with this opinion.