179 Ky. 571 | Ky. Ct. App. | 1918
Opinion op the Court by
Reversing:
The will of Mrs. Anna Isabelle Giltner, who died a resident of Bourbon county on the 26th day of August, 1914, is the subject of this litigation. Mrs. Giltner left two children surviving her, both married: a daughter, Mrs. Grace Giltner Talbott, a son, "William Giltner. By the will the daughter, Mrs. Talbott, is devised a horse, a carriage and the household effects of the testatrix. The landed estate is placed in trust for the use and benefit of the two children during their lives with remainder over to their children, if any; and if not, then to the Massie Memorial Hospital, Paris, Kentucky. The daughter, Mrs. Grace G. Talbott is named executrix of the will and trustee of the estate. Mrs. Giltner
The will was probated in the Bourbon county court without objection. Some months thereafter the son, William Giltner, instituted this contest, alleging that his mother did not possess testamentary capacity at the time of .the making of the will, and that she was unduly influenced in her clevises by the' daughter, Mrs. Talbott, and her husband. •
Upon the first'trial in the circuit court the jury hung, and the case was continued to a subsequent term; on the second trial the jury returned a verdict finding the paper not to be the will of Mrs. Giltner. Judgment was entered upon the verdict and the motion and grounds for new trial being overruled, the daughter, Mrs. Talbott, as trustee and executrix prosecutes this appeal.
Appellant, Mrs. Talbott insists that the court (1) erroneously instructed the jury and especially in submitting an instruction upon undue influence, there being, as she says, no evidence whatever of undue influence; (2) she asserts that the verdict is contrary to the evidence and is not supported by sufficient evidence.
From the evidence we learn that Mrs; Giltner was a Miss Collins, and before her.marriage resided in the city of Louisville, and was engaged as á teacher in the public schools of that city. According to the evidence she was a young lady of good education. Upon h$r marriage to Mr. Giltner she went to Bourbon county to reside upon a small fax’m. To their marriage was born three children, two sons axxd a daughter; oxxe son dyixxg some years before his mother1, but after he had gx*owxx
This is the third will executed by the testatrix before her death. The first one was prepared at her suggestion by her lawyer, Judge Mann; the second she prepared herself; becoming dissatisfied with the second will she sought out her lawyer, Judge Mann, and the will in contest was prepared. It was written by Judge Mann at the suggestion of the testatrix, and in accordance with her direction. So far as the evidence shows no one was present during the preparation of the will except the testatrix and her lawyer. After it was prepared she carried it over to her banker, Mr.. S. E. Bed-ford of the People’s bank, Paris, Kentucky, where she signed it in the presence of S. E. Bedford and W. T. Bryan, who in her presence and at her instance witnessed the will and attested it ..with their signatures. She left the will and certain other papers with the banker with instructions to deliver to her daughter, Mrs. Talbott, upon testatrix’s death. The other papers were to be delivered part to her daughter, part to her son, and the others to her grandchildren after the death of testatrix. So far as disclosed by this evidence no one suggested to testatrix how her property should be
Complaint is made that testatrix disliked her two daughters-in-law and had asserted that neither of them should enjoy any part of her estate either while she was living or afterwards. The. evidence substantially supports, this assertion. And it further shows that Mrs. Giltner and her daughters-in-law disagreed about different small matters .and that the younger women wére not as respectful to or as considerate of their mother-in-law as the difference in their ages and their relative positions required of them. Undoubtedly Mrs. Giltner was a very determined and uncompromising person who had confidence in herself and demanded obedience from her children. This no'doubt was largely the cause of the disagreement between her and the daughters-in-law. However this may be, it is thoroughly impressed upon the mind that Mrs. Giltner was not easily controlled or persuaded, and the exercise of influence over her in making her will is quite improbable.
The other ground of contest is rested upon the mental deficiency of the testatrix and her inability to take a rational survey of her property, ■ recognize the natural objects of her bounty, her duty to them and to understand and appreciate the distribution made by her of her estate under the written instrument. It is asserted that the father of Mrs. Giltner at one time was a lunatic and that certain other members of the family suffered mental derangement. In Mrs. Giltner’s case it was urged that she suffered from arterial sclerosis and that this disease affected her mental grasp; that she had a cracking noise in her head, or neck, from which she had suffered for many years. A sister testifying for the contestant tells of a sunstroke which Mrs. Giltner suffered in her early life and from which the sister is of .opinion her mental troubles arose. It must be borne in mind that all these troubles, if troubles they were, afflicted Mrs. Giltner even before her marriage and certainly during the time when she was not only
"With all these facts before her the testatrix, fearing that her son who had been a failure in business and who owed debts amounting to several thousand dollars, might allow the estate which she had accumulated through a life of unceasing efforts to slip through his fingers and he come to want, provided in her will that he should have one-half of the net income arising from her estate, and that his children, if any should be born to him, take one-half of the estate in fee at his death, and that the other one-half should go to the daughter and her children in like manner. The provisions of the will were only an attempt to preserve the estate against the improvidence of the son who had proven himself a business failure, and so far from indicating a want of testamentary capacity presages a mind thoroughly able to take account of all the facts and, to guard against a disaster which the life of a luckless son proved imminent.
This court has repeatedly held that any influence obtained by acts of kindness, love, or appeals to the feelings or understanding which does -not destroy free agency, is within the law, and a paper otherwise regular will not fail because executed by-one so influenced. It is but natural that a testator should- remember those for whom he entertains a feeling of love and affection, and those too who have been kind and considerate of him. Kindness, attention' and helpfulness often move a devisor to mention the doer in his testamentary paper, and such devise, if otherwise regular, must not be condemned.
Undue influence can not be presumed. Proof tending to establish its existence must be adduced. Nor will the fact that the devisee or another had access to the testator, or there was opportunity to influence him, be sufficient to sustain the plea unsupported by evidence of facts which tend to establish the want of free agency on the part of testatrix.
The great .weight of the evidence supports the contention of the propounders that Mrs. Gfiltner was a per- • son possessing testamentary capacity at the time of the execution of the paper on the 13th day of April, 1914. It further shows that she was a person of strong will and fixed purpose, not easily dissuaded from her intentions.
There being an utter failure of proof of undue influence it was error for the court to submit that question to the jury. For this reason the judgment is reversed for proceedings consistent with this opinion.