41 Ky. 79 | Ky. Ct. App. | 1841
delivered the Opinion of ihe Court.
The County Court of Garrard having rejected a document, offered there for probate, as the last will of Alexander Reed Sr. deceased, the case has been re-tried in this Court, and it is now adjudged that the testimony adduced on the trial here, is sufficient to establish the controverted paper as the valid last will of the said decedent.
The only litigated question is, that of testamentary •capacity; andón this point, we have, on the negative side, the opinions of the two subscribing witnesses and of one other witness, perhaps two others, unsupported, as we think, by the only reasons assigned for them or by any established facts—whilst the affirmative is sustained by the more explicit and unqualified opinions of many witnesses, sustained by a multitude of minute and persuasive facts, and corroborated also by the circumstances proved by the opposing witnesses, and by the almost conclusive fact that the testanientary paper was written as directed by the testator himself.
The only negative facts are the testator’s age and physical infirmities, his attachment to and^emancipation of his slaves, and his pretermission of two of 'his children, a married daughter and an only son, to whom, as well as others, he had previously made advancements.
But though the testator was rather over 80 years of age, and was so afflicted with a palsy of the hands and neck as to be unable to write or even to feed himself, yet the facts proved by all the witnesses show indisputably, that he was, at the date of the publication, in 1834, and for several years afterwards, rational in all his acts and convernations, manifesting as much mind and memory as men of his age generally possess, and that he superin- , , , ,r ° , , .. r tended and directed, with intelligence and provident care, all his business consisting of domestic affairs, litigation,
Then, deciding this case as we must, according to the fads proved and our own deductions from them, our conclusion is that when he published bis testament in 1834, the testator had a disposing mind, and that the disposition thus made was the spontaneous offspring of that mind, freely, deliberately, and independently exercised.
A codicil, dated in 1840, and providing for the transportation of the emancipated persons to Liberia, or the sale of them in the event of their refusal to be thus transported, has not been proved or offered for probate; and therefore, the only purpose of noticing it in this opinion, is to suggest that it may be hereafter proved and recorded as an appendage to the will, if in fact it was legally publish
It is, therefore, considered that the document published in 1834, be recorded in this Court, as the last will of Alexander Reed Sr. deceased, and n copy thereof certified to the Garrard County Court and there also recorded.