92 Ky. 202 | Ky. Ct. App. | 1891
delivered the opinion or the court.
John Hoerth died testate on the 8th of February, 1889. He made his will the day before his death, which was admitted to probate by the Jefferson County Court, the county of John Iloerth’s residence. He devised all his estate, valued at about $5,000, to the appellee, ¥m. J. Zable, in trust for his youngest child, the appellee Nick Hoerth, who was about fifteen years old; and he excluded his' four other children from any interest in his estate, ■except the sum of five dollars each, and they contested .the probate of the will on the ground of undue influence ■and incompetency of the testator; and these issues having been decided against them they have appealed to this court.
There is not the slightest evidence or circumstance fending to show that the boy, Nick Hoerth, influenced, unduly or otherwise, his father to make the will; nor do counsel make such contention. ¥m. J. Zable, the trus
The next question is, was the testator competent to make the will ?
Upon that subject, Mr. Lieber, the testator’s lawyer,, who wrote the will, says that the testator was competent to make it; that the testator told him how he wished to dispose of his property and to whom; that after he had drawn up the will and read it to the testator he understood it, and approved of it save in one particular only, to-wit: he had the time that the devisee was to take possession of the property changed from twenty-one years of age to-twenty-five years of age, saying that the devisee would be more likely to take care of the property at the age of twenty-five years than at the age of twenty-one years— certainly not an unwise suggestion. Mr, Lieber also
According to the proof in the case the testator virtually disinherited his four children because they took sides with their mother and became estranged from the testator in the unfortunate controversy between the mother and testator which culminated in a separation and divorce, and. he gave his property to Nick, who did not take sides against him or become estranged. This,.if his mind was sound, and not unduly influenced, he had the legal right to do. It is a cardinal principle in the law of wills that the testator, if of sound mind, and not under undue influence, has a right to dispose of his property as he pleases; and if he pleases to dispose of it contrary to the dictates of natural, or moral obligation, he has a perfect right to do so, provided, as said, he is of sound mind, and not unduly influenced. (See Zimlich, &c., v. Zimlich, &c., 12 Ky. Law Reporter, 590.)
The judgment is affirmed.