| Ky. Ct. App. | Sep 28, 1864
delivered the opinion of the court :
A paper purporting to be the last will of William Harrel, deceased, after probate in the county court of Daviess, was, on an appeal to the circuit court, set aside by the verdict of a jury and the judgment of that court. From that judgment the propounders of the will appeal to this court.
When he acknowledged the testamentary document, the decedent, about 70 years old, was confined to his bed by an inflammatory disease, which appeared very distressing, and made him frequently both “drowsy” and “flighty,” and of which he died about two days after the attestation.
At his death he owned the homestead tract of land, worth $10,000; ten slaves, valued at $4,000; stock worth $1,125; other personalty, estimated at $1,673; and $682 cash in hand; and there is no proof that he owed any debts. He left four children and some grandchildren, none of whom (children„or grandchildren) had been advanced by him.
For such gross inequality no reason is suggested in the document itself or by the proof on the trial. The testator had an unquestionable power to make such a will. But its apparent unreasonableness requires satisfactory evidence that it was the free and deliberate offspring of a rational, self-poised, and clearly disposing mind. And all this has not, in our opinion, been shown by the testimony with sufficient assurance.
No witness expressed the opinion that he had not a disposing mind, and the subscribing witnesses, and most others, testified to some facts conducing to the abstract conclusion that he had. But all of them prove other facts, conflicting, in a greater or less degree, with that conclusion; and these we will summarily notice in two classes — 1st. As illustrative of incapacity; and, 2d. As indicative of extraneous influence controlling his enfeebled and disturbed mind.
Now, what changed that settled purpose, for the first time, when he was expecting to die every hour, and was scarcely able to think deliberately or exercise a prudent volition ? The record affords no clue to a consistent answer, unless his wife’s influence, aided, perhaps, by the co-operation of his son James, finally subjected his will and changed his long-cherished purpose of intestary and legal equality. And, considering all the facts, the presumption is strong that this was the controlling cause. In the disturbed and flitting condition of his mind, the impress of that influence and dictation might have enabled him mechanically to dictate the devise to his wife and son James of his whole estate, without classifying it or enumerating the articles. And this is rather confirmed by the proof that he did not suggest, but seemed to pretermit, the ulterior provision as to the slaves until his attention was called to that subject.
Whilst, therefore, the testamentary right should be carefully guarded and faithfully vindicated, this court should be vigilant to prevent, as far as it can, the abuse of that right by withholding its approving seal from a document, so unnatural and so questionable as to freedom and capacity, as that now under its final consideration. To establish it as a valid will would encourage a prostitution of the testamentary power. To reject it would increase the value of that power, and tend to frustrate improper intermeddling, and especially in extremis, to disturb the just equality of the law.
Wherefore, this court adjudges that the document in question is not the will of William Barrel, and remands the case to the circuit court, with instructions to enter this judgment and certify it to the county court of Daviess, to be recorded as the judgment of that court.