175 Ky. 462 | Ky. Ct. App. | 1917
Opinion of the Court by
Affirming.
This is a. contest over the will of Sam T. TIerr, an unmarried man, between his niece, Mrs. Keene, the appellant, and his brother, Hugh Herr, the appellee. ,
The testator made his will in May, 1911, when he was about 48 years of age, and died in October, 1913. The grounds of contest were mental incapacity and undue influence, and it may here be said that the great weight of the evidence establishes that the testator was entirely capable of making the will and was not unduly influenced in its execution, so that there is no complaint about the sufficiency of the evidence to sustain the verdict, nor are the instructions given by the court open to objection.
The first ground of reversal relied on is that the jury were not selected and impaneled as required by the statute. Upon this point the facts shown by the record are these: When the case was called for trial the court directed the clerk to prepare a panel of twenty-four from which to select the jury, “and it was thereupon ascertained that only twenty of the regular panel of twenty-four jurors were present in court and qualified to serve as jurors upon the trial of this cause. The plaintiff thereupon moved the court that twenty-four names of jurors be drawn from the jury wheel and placed in the box from which to draw a panel of eighteen. This motion was overruled by the court, to which the plaintiff at the time objected and excepted. The name of one juror, J. K. Beck, Esq., was thereupon drawn from the wheel by the judge of the court and he was impaneled as a regular petit juror, and added to the twenty jurors theretofore found competent for service. The court thereupon ordered the sheriff to summon three bystanders to complete the number of twenty-four jurors whose names were to be placed in the jury box from which to draw the panel of eighteen. To this the plaintiff objected and excepted and renewed her motion for the names of twenty-four jurors to be drawn from the wheel and placed in the box from which the panel of eighteen should be drawn and made up, which motion was overruled. In obedience to the summons of the sheriff, three bystanders were thereupon called by the court and their names placed in the box, and from the names thus made up the derk of
Section 2243 of the statutes provides, in substance, that at each term of circuit court thé judge shall draw from the drum or wheel case the names of not less than thirty nor more than thirty-six persons to act as petit jurors, and from the list not less than twenty-four nor. more than thirty jurors shall be selected by the.judge as the regular panel "of the next petit jury. Under this section it is customary for the judge at the beginning of the term to select from the names so drawn from the jury wheel twenty-four men competent to serve as jurors, but if a panel of twenty-four cannot be secured from the list so drawn it is provided in section 2247 of the statutes, that “if there shall fail to attend, or there shall be excused by the court, for good cause, such a number as will not leave the number of jurors required, the judge shall draw from the drum or wheel case double the number of names to supply the places of such as are excused or fail to attend, and the jurors so drawn shall be summoned by the sheriff, .... and if, at any time during the term, it becomes necessary to supply one or more jurors, double the number of names necessary for supplying their places shall be drawn from the drum or wheel case and summoned by the sheriff: Provided, That when the number of vacancies does not exceed three, the judge may direct the sheriff to summon bystanders to supply the vacancies.”
Under these statutes a regular jury panel consists of twenty-four persons selected‘from those drawn from the wheel and when the vacancy in this panel does not at any time exceed three, the judge may summon bystanders to supply the vacancies, but not more than three vacancies can be filled by bystanders over the objection of either of the parties entitled to demand a jury trial. If more than three vacancies in the regular panel exist, then a sufficient number of names must be drawn from the wheel to fill the vacancies or to so fill them as that there will be only three vacanies to be supplied by bystanders. In other words, the chief purpose of the statutes in respect to the matter now under consideration was to give to every litigant an opportunity to have a jury panel on which there were not more than three bystand
Another assignment of error is the admission of evidence tending to show the value of the property owned by the mother of Mrs. Keene. It appears from the evidence that the mother of Mrs. Keene is a widow of considerable wealth, and Mrs. Keene is her only child, and it is also shown that Hugh Herr and Mrs. Keene have each large estates. On the trial of the case witnesses for the propounder were permitted to testify, over the objection of counsel for the contestant, as to the value of the estate owned by the mother of the contestant.
It is a very well-established principle in will contest cases that evidence may be introduced showing the financial condition of the contestants as well as that of •the propounders, for the purpose of showing the reasonableness, or unreasonableness, as the case may be, of the will made by the testator, and for the further purpose of illustrating, so far as it may, his capacity or lack of capacity to make a will and his freedom from or coercion by undue influence in its execution. Under this rule no question could be made as to the competency of evidence
When the grounds upon which evidence of this nature is admitted are inquired into, it will be seen that they are rested upon the theory that a testator who has natural objects of his bounty, some of whom are rich and others poor, some helpless and others capable, and some improvident and others prosperous, may naturally and reasonably in the distribution of his estate take into consideration the financial as well as the personal, physical and mental qualifications of the persons to whom he desires to leave his estate, so that each of them may receive such portion as a just and fair-minded testatoi would think equitable under all the circumstances. If a testator, for example, should disinherit poor or helpless kindred and bestow his bounty upon capable and prosperous relatives not more closely akin than those to whom he had not given anything, it would be a circumstance tending to show that he did not have mental capacity sufficient to enable him to know the natural objects of his bounty and his obligations to them, or that his will was procured by undue influence. On the other hand, if he should distribute his estate in an equitable and just manner between the natural objects of his bounty, taking into consideration their condition in life and the circumstances surrounding them, it would be a reasonable inference that he did know the objects of his bounty and his duty to them.
This being in a general way the theory upon which this character of evidence is found to be admissible, it seems to us that a testator, in coming to look over the conditions and circumstances surrounding those whom he desires to be the beneficiaries of his bounty, might very reasonably take into consideration not only the present value of the estate owned by each of them, but the value of such estate as in the natural order of things some of them might reasonably expect to receive; for example, such estate as in the ordinary and natural course of events one of them might receive from his father or his mother,
Another complaint is that the trial judge during the progress of the case made from the bench many remarks tending to indicate to the jury that he was adverse to the cause of the contestant. We have examined with some care these remarks of the trial judge, which were occasioned by controversies between counsel concerning the admissibility or rejection of evidence, and our opinion is that the judge did not in these comments indicate his state of feeling toward either of the parties or the inclination of his mind as to the merits of the case. It is true he made too many comments in answer to arguments and objections of counsel, but we do not think they were at all prejudicial to the substantial rights of the contestant.
It is further complained that the court committed error in refusing to instruct the jury on the subject of an insane delusion that it is argued the testator had concerning Mrs. Keene’s attitude towards the will of his father, as well as her personal ill feeling respecting him, and concerning a mistaken notion that it is said the testator had as to his title to 268 acres of land allotted to him in the division of his mother’s estate; but a careful consideration of the evidence convinces us that it was not sufficient upon which to base the offered instructions, and so the trial judge did not commit error in this respect.
