148 Ky. 116 | Ky. Ct. App. | 1912
Opinion op the Court by
Affirming.
The authenticity of the will is not questioned, nor is the testamentary capacity of Charles L. Raison seriously questioned. It appears that the testator was a man of fixed and determined purpose. His son, Thomas W. Raison, a surgeon in the United States Navy, testified that his father was a man of clear and vigorous mind up until his last illness, and that he was tenacious in his opinions, judgments and convictions. The only testimony in the record which might be argued as supporting any irrational condition of his mind was the established fact of his belief in spiritualism and in communion with departed spirits, a belief which he entertained as far back as 1897, some three years before his marriage to the appellee. It seems that his mother was also a firm believer in spiritualism.
The fact that one believes in .spiritualism is not an evidence of an unsound mind. Many brilliant and we’ll balanced minds are fixed in the belief that they can communicate with the spirits of those whose physical life has ended. The belief is-a conviction commonly produced by evidence 'of some sort — not evidence perhaps that might appeal to the ordinary run of minds as satisfactory or as sufficient to establish a belief. A belief founded upon evidence, however unsatisfactory that evidence may be to some other mind which measures it
Nor is there testimony in the record upon which the trial court would have been warranted in submitting to the jury the question of whether it were obtained by any undue influence. The appellee, Anna E. Raison, at the time of her marriage, was- a medium, in the sense commonly applied to one wh» is 'supposed to be the intermediary between the living and the dead in spiritualistic manifestations or seances. She had advertised and held meetings attended by the public. Doubtless it was the fact of his mother’s long-fixed belief in spiritualism
A considerable amount of testimony given in behalf of appellants was excluded upon the trial. It largely
The reading of this record inevitably results in a sympathy for the contestants and in a spontaneous feeling that the testator did not do for them as the average man might have done for his children. But will contests are not to be tried by our view as to what the testator should have doné in any particular instance. The observations of this court in Childers’ Executrix v. Cartwright, et al., 136 Ky., 498, apply with peculiar aptitude here, where, after remarking the dominating control of the mother over the father and her disposition to rule or ruin, it was said :
“The burden of .showing that the instrument is invalid because procured by the -exercise of undue influence is upon the contestants. This must be shown by evidence at least tending to establish that undue influence was exercised upon the testator. It is not sufficient that it be shown that there was an opportunity to exercise undue influence, or that there was a possibility that it was exercised; some evidence must be adduced showing that such influence was exercised. The law permits the owner of property, who- i's of sound mind and disposing memory, to transmit his- property by last will and testament in such manner as pleases him, and juries are not permitted to make for him a will that accords with their ideas of justice and propriety; nor are they permitted to suspect away the right of the testator to dispose of his property in accordance- with his own will and desire.”
Mr. Raison ordered the manner of his life, his conduct and his associates. The property which he willed to his wife was his. It was his privilege to give it to her if he desired to do so, provided the gift was the act of a sound mind and the result of his own free agency. There was no testimony upon which the jury might have found otherwise, and the judgment is affirmed.