199 S.W.2d 728 | Ky. Ct. App. | 1947
Affirming.
This appeal is from a judgment on a directed verdict in favor of the appellees at the conclusion of the appellant's evidence. Mrs. Teegarden instituted the action to have set aside, the will of her deceased sister, Mary Eliza Webster, on the grounds of undue influence and mental incapacity. The decedent was also a sister of the appellees, Sallie Webster and George Webster. She died in 1944 at the age of 48. The will under attack was executed in 1930. At that time the decedent was living with her mother at the home place. The appellees, neither of whom had ever married, had lived at the home place until about 1928, at which time they moved to another house on the farm some quarter of a mile distant. They did not return until the death of their mother in 1933, and from that time on the decedent made her home with them. Mrs. Teegarden, who married when Mary *20 Eliza was some four or five years of age, lived about a quarter of a mile distant from the home place and was a frequent visitor there.
The will was prepared by a highly competent and reputable attorney, who is now dead, as are both of the attesting witnesses. It was simple in its form and, after directing that all debts be paid, it was provided that Mrs. Teegarden be given $50 and the remainder of the estate divided between the appellees. The extent of the estate is not shown in the record, but we gather from the briefs that it consisted of an interest in several pieces of real estate as well as a sizable personal estate.
In a well-prepared brief the appellant contends that her case was one for the jury, especially on the question of undue influence. Some 18 lay witnesses testified in general that Mary Eliza virtually lived in seclusion; that she had the mind of a child and while she knew her relatives she did not know the extent of her estate; and that she did not transact her own business. Most of them said they thought she lacked testamentary capacity. Early in her youth the decedent had diphtheria and scarlet fever. These diseases left her hard of hearing and with a decided impediment in her speech. She attended school for several years, but accomplished little more than learn to read and write. Her school teacher said that as she remembered she was very slow to learn and made little progress. She rarely, if ever, went to Mt. Sterling except in the company of one or both of the appellees. While she assisted with the housework, it is quite evident that her mother looked after her business until her death and thereafter it was attended to by the appellees. No witness testified to any fact or facts other than heretofore mentioned upon which they based their opinions. It strikes us that, instead of the testimony showing particular facts which would indicate mental incapacity, it tended to show the physical condition, conduct and habits of Mary Eliza. She was able to read and write and do housework. Living in virtual seclusion is not of itself a sign of mental incapacity. As a matter of fact the appellees have lived in somewhat the same manner. Deafness and retarded speech are physical and not mental handicaps. It may be that the diseases affected the decedent's mind to some extent, but the question is, Did they destroy her testamentary *21
capacity? She may not have known the extent of her estate, but this would not necessarily show mental incapacity. The fact that she did not transact her business would not of itself show mental incapacity, because it is quite a common occurrence for women to leave their business affairs to trusted relatives. As indicated in Moore v. Moore,
A wide range of proof is allowed when a will is attacked upon the grounds of undue influence and lack of mental capacity. Welch's Adm'r v. Clifton,
It is earnestly insisted that the will was an unnatural one, and the case of Hagedorn v. Scott,
As we view the evidence on undue influence we think it even weaker than that on the lack of mental capacity. As said in the case of Ecken's Ex'x v. Abbey,
Lastly, it is contended that evidence relating to a sanity inquest held in 1939 should have been admitted, principally because all the evidence tended to show that throughout her life Mary Eliza was said to have the mind of a child. The inquest which the appellees contend was void resulted in Mary Eliza being declared incompetent. This inquest was held nine years after the will was made and, for reasons heretofore set forth, aside from its remoteness, we believe it was proper to exclude it. Reliance is placed by the appellant upon the case of Oder's Ex'r v. Webster,
For the reasons indicated the judgment should be and it is affirmed.