145 Ky. 45 | Ky. Ct. App. | 1911
Lead Opinion
Opinion op the Court by
Affirming.
This is an appeal by Robert L. Simpson, Annie Carney, Blanche Spalding and Arthur Simpson from a verdict and judgment establishing the will of their father, John A. Simpson, who was an unusually active and ¡energetic farmer and stock raiser and trader, of Washington County. He was twice married, his first wife having died
“Item 1. I will and direct that all my just debts and 'funeral expenses be first paid.
“Item 2. I have this day made a deed of gift in land to the extent of two thousand dollars to my son, Robert L. Simpson, which I now declare shall be in full of his interest in my estate, and I will and direct that he shall. no further interest or share therein at my death.
“Item 3. I have this day made a deed of gift in land to the extent of- two thousand dollars to my daughter, Blanch Spalding, and which I now declare shall be in full of her interest in my estate, and I will and direct that she shall have no further interest or share therein at my death; that said deed is made to my said daughter in fee simple.
“Item 4. I have this day executed and delivered to my daughter, Annie E. Carney, my note for two thousand dollars, payable on or before twelve months from this date, without interest; and should I die before having paid off said note; then it is my will and desire that same be paid her out of my estate, but should said note be paid before my death or afterwards it shall be in full of all interest my said daughter, Annie, is to have or take in my estate, and I bequeath and devise her nothing than said two thousand dollars when paid.
“Item 5. I will and bequeath the sum of one thousand dollars to each of my two children, Arthur Simpson and Hall Simpson, in full of their respective interest or share in my estate.
“Item 6. I devise and bequeath all the residue of my estate and property, real, personal and mixed to my five children, Edna, Reuben, Alma, William and Henry Simpson, share and share alike to each of them.”
_ “Although you may believe from the evidence that said Simpson at the time of the execution of the paper marked ‘A’ had mind and memory sufficient to know his property, and the value thereof, and to take a rational survey of the same, and to dispose of it according to a fixed purpose of his own, yet, if you shall further believe from the evidence that, at said time, said Simpson did not also have mind and memory sufficient to know his children, the natural objects of his bounty, and his duty to them, you should find against said paper marked ‘A.’ and your verdict should read as set out in instruction No. 1.”
The fifth and last instruction was the usual instruction as to. the power of the jury to return a majority verdict.
Appellants insist, however, that the court committed at least three substantial errors against them; (1), in refusing to give an instruction upon the subject of undue influence in the execution of the will; (2), in refusing to give an instruction covering- the alleged insane aversion of John A. Simpson to his son, Arthur; and, (3), in refusing to permit an alleged contract of July 10th, 1909, between Reuben Simpson and ■ Edna Ball upon the one part, and Arthur Simpson upon the other part, to be
“The court instructs the jury that if they believe from the evidence that John A. Simpson, at the time of the execution of said paper marked ‘A,’ if he did execute it, had an insane aversion to his son, Arthur Simpson, and that such aversion entered into the making of said paper ‘A’ offered as the will of said John A. 'Simpson, and that under the influence thereof the testator made a different disposition of his property than he would have made but for such insane aversion, then they should find the paper ‘A’ not to be the will of said John A. Simpson.”
This instruction was asked upon the strength of certain testimony which tends to show that John A. Simpson had continually mistreated Arthur Simpson after he left his father’s home shortly after his mother’s death. It will be noticed that the will puts Arthur and his brother, Hall, upon precisely the same footing as devisees, and that both boys left their father at about the same time. If there was any discrimination against Arthur, there was a like and equal discrimination against Hall; and there is no claim that the father had an insane aversion to his son, Hall. The testimony shows that John A. Simpson was a money maker far beyond the average farmer, and looked upon the labor of his sons as an asset in his business. These boys left their father as soon as they were able to perform any substantial work upon the farm, and six or eight years before they reached their' majority. It is argued, and it is doubtless true, that the father felt, that in depriving him of this period of profitable labor they had mistreated him, and that he had only charged them in his will with what he had lost by their untimely desertion. With the possible exception of Beu
Furthermore, in 1907, some eight years after the boys had left home, they requested their father to buy for them the “Felix Nall Farm,” which he had given to their brother, Robert, at the time he made his will; and the father granted their request by buying the farm back from Robert for $9,000, and turning it over to his sons, Arthur and Hall. He stocked it for them', and set them up as independent farmers; but Arthur soon fell out with Hall and his wife, and left the place. TMs farm had been charged to Robert at $6,000, but had so increased in value in the meantime that his father paid $9,000 for it when he bought it for Arthur and Hall. Furthermore, subsequently to this, John A. Simpson loaned Arthur money which he never repaid. Many eccentricities and pecularities upon the part of John A. Simpson have been pointed out as evidence of his unsoundness of mind, and of Ms aversion to his cMldren. These matters, however, were all submitted to the jury under proper instructions, and it is not our province to weigh the evidence. No instruction was asked or given as to any aversion upon the part of the father to his son, Hall; and under all the testimony we are of opinion it was not proper to give an instruction upon that question as to Arthur.
Appellants offered instruction “Y” to the effect that the jury should find against the will if, at the time he executed it, Simpson did not have such sensibilities as to enable him to know the duty he owed to his children, who were the natural objects of his bounty. This point, however, was substantially covered by instruction No. 4 above referred to, and it was not error to refuse it in the form asked by the contestants.
. Taking all the evidence into consideration, we are of opinion that the case was fairly presented to the jury, and that the judgment should be affirmed. It is so ordered.
Dissenting Opinion
Dissenting opinion by
I dissent for the only reason that the lower court re* fused to allow the proffered contract between Eeuben and Edna Simpson and Arthur Simpson to be read as evidence to the jury. The jury had the right to consider these facts, not that it threw any light on the state of mind of John A.- Simpson, but they had the right to consider it as evincing an intent on the part of the contestees and the length they would go in obtaining evidence to sustain the will.