205 Ky. 31 | Ky. Ct. App. | 1924
Opinion op the Court by
Affirming.
Dr. V. B. Newman, a resident of Henderson county, died on December 7, 1919, and left a will by which he devised his property to certain relatives, friends and charities. The will was dated October 17,' 1917, and at that time he was nearly eighty years of age. Subsequently, he made two codicils, one dated October 2, 1919, and the other October 4,1919. The will was probated in the Henderson county court, and on appeal in the Henderson circuit court, the will was contested by Elliott L. Newman, the only child of the testator, on the ground of mental incapacity. Pursuant to a peremptory instruction, the jury returned a verdict sustaining the will. Judgment was entered accordingly, and Elliott L. Newman has appealed.
The only question for decision is, whether the evidence of mental incapacity was sufficient to take the case to the jury.
Sam Campbell knew the testator thirty or forty years. The testator bought a piece of land from him. He called attention to the testator’s views on the negro and the Catholic church, and gave it as his opinion that the testator was not possessed of testamentary capacity. On cross-examination he stated that the doctor was a rather sharp man, and would not say that he was particularly broad. He regarded the doctor’s mental capacity as limited because he made most of his money by his profession, and a year or so before he died went off on a hobby and said that medicine was a humbug. He then went to rubbing people on the back, “making their backs pop,” and said that it would do them more good than all the medicine.
Ben Watson had known Dr. Newman all his life. The doctor had a good deal of book learning, and believed that a man ought to go to school. The doctor was a high-tempered man and very prejudiced in some things. He was always talking about the negro or the Catholic church. On being asked if Dr. Newman knew the location and value of his property, his natural duty to liis children, or those who had claims on his bounty, and how to dispose of his property according to a fixed purpose of his own, the witness said: “Well, Dr. Newman I always regarded as a man of good sense, but he was a man- of very high prejudice, and it might have been that if he had a little prejudice against you he might not have done what he conceived to be right.” ■
Gr. M. Eubank had known the doctor for many years, and the doctor had saved his life. The doctor on one occasion had said that his only objection to the tobacco pool was that they didn’t grade every man’s tobacco at the same price. The doctor would also maintain that the negro was a beast and had no soul. In his arguments the doctor would not pay any attention to him, but would go on with his argument.
J. L. Harris, a brother-in-law of the testator, testified that he paid his sister $720.00 which came from his mother’s estate; that the doctor said he was going to put it into Union county land. The witness further stated that he had shot Dr. Newman and tried to kill him, yet
Judge Flournoy had known Dr. Newman ever since he came to Union county, and in answer to the question as to whether the doctor had testamentary capacity the witness said: “If his antipathies were aroused, or he became irritated by any proposition at all, I would say absolutely no. I never regarded him as balanced.”
Dr. C. M. Smith had known testator for about thirty years. “He was a man with a highly nervous system and extreme prejudices.” “He was a man of a good deal of book learning and had a wonderful memory.” “He would go crazy on certain things — greenbackism and religious matters — and was very strong in his arguments, much more than anybody else.” On hearing the doctor argue about the negro and Catholicism the doctor would give “just notions of his own; more like a man suffering from a delusion.” In answer to the question if he believed the doctor could make an intelligent disposition of his property and know the objects of his bounty, he replied : “I think he would be swayed by his emotions.” He reckoned the doctor was a fairly good business man, but met the doctor in consultation often, and the doctor would argue that there was no such thing as a typhoid germ, and added, “It looks to me if a man didn’t have min'd enough to believe what was taught I wouldn’t regard him as being a man of normal mind.” In closing his testimony he said that he supposed Dr. Newman accumulated what property he had" by his own labor, that the doctor knew how to make trades and contracts, and to conduct his farm and other business; that he supposed he knew how to. make a sale and purchase as well as the average man. He also supposed the doctor knew the value of his horses and land, the terms of his contracts and obligations, and was at all times able, until his death, to look after his estate and to say what it was worth, and what it consisted of. He also added that he would have had no hesitancy, in 1917 or .1918, in entering into business arrangements with the doctor. The witness also added that many insane persons made good trades.
As before stated, lack of testamentary capacity was the sole ground of contest. The test is, did the testator have sufficient mental capacity to take a survey of his property, know its value, the natural objects of his bounty and his duty to them, and to dispose of his property ac
But it is insisted that certain provisions of the will afford some evidence of mental incapacity. By one of these provisions he recited that his two children, Adella and Joseph Newman, who owned an undivided interest in the Union county land, had died childless, leaving him as their only heir, and then devised the interest thus acquired to Elliott Newman for life, remainder to his bodily heirs, but provided if he left no bodily heirs, it should be sold and the proceeds distributed according to clause 7 of this will. As a matter of fact, however, Adella and Joseph Newman left wills by which they devised their interest in the Union county land to Elliott Newman, and it is argued that the testator did not know his estate because he attempted to devise property in which he had no interest. There is nothing in the record to show that the testator knew that Adella and Joseph Newman had left wills devising their property to their brother Elliott, and, in the absence of such knowledge, it was but natural for him to assume, from the fact that they died childless, that he, their father, was their only heir, and to act on that assumption, and the fact that he did so, can not be-regarded as evidence of testamentary incapacity.
The other provision relied on to show want of testamentary capacity is codicil No. 1, which is as follows:
“I have this day sold and conveyed to F. B. Berry a certain tract of land in Henderson county, Kentucky, and have taken his notes aggregating the sum of six thousand dollars; it is my will so long as he keeps said notes alive and does not permit them to become barred by the statute of limitation now in effect or which may hereafter be- in effect, he shall not be forced by suit to pay same. This October 2, 1919.”
The argument is that the provision was so vague and indefinite as to require a suit for its construction. Whenever the language of a will is uncertain the executors naturally prefer to have the will construed and their powers clearly defined, to the end that they may be protected in whatever they may do by the judgment of the court, and the fact that they resorted to a suit for the construction of the will is no evidence whatever of testamentary incapacity unless the will on its face- is so irra
After, all, the case, as made out by the contestant, was simply one where the testator, who was a man of strong will and fine intellect, was shown to have entertained high prejudices and peculiar views on subjects not connected with the disposition of his property, and the evidence was so lacking in probative effect as not to require the issue of testamentary capacity to be submitted to the jury.
Judgment, affirmed.