90 Ky. 28 | Ky. Ct. App. | 1890
delivered the opinion op the court.
This is a contest between the devisees of Joseph P. Williams upon the one side, -and his heirs upon the •.other, over his will. It was executed on May 11, 1881, and he died in 1887. It .having been admitted to probate in the county court, his heirs took an appeal to .the circuit court, where It was rejected; and of this .his executor and the devisees.are .now-complaining.
As the case must return for another trial, it would be improper to enter upon a discussion of the evidence pro et con, and it is sufficient to say that many witnesses have testified upon each side, and their •evidence is very conflicting. The request will not, therefore, be granted. Nor can it be said that the verdict .was flagrantly against the evidence; and unless this be so, the finding of a properly instructed jury upon the facts will not be disturbed any more in a case of this character ' than in any other civil action.
A motion was made in the circuit court by the propounders to dismiss the appeal taken by the contestants from the order of the county court admitting the will to record, the ground being that no transcript of the proceedings in the latter court, or copy of its judgment, had been filed as a part of the appeal papers in the circuit court.
The contestants had, when the appeal was taken, filed in the circuit court a statement setting forth the names of the parties, appellants and appellees; the decease of the testator; the names of his heirs-at-law; the probate by the county court at a time therein
It is not suggested that the statement is defective; but it is urged that an appeal could not be taken by the filing of it alone; and that as the appeal is from the judgment below, a copy of it must be filed.
Our statute does not say how an appeal from the county court to the circuit court in a will case shall be taken. It merely gives the right to it.
In Jones, &c., v. Jones, &c., 3 Met., 266, it does not appear from the report of the case that any transcript of the county court proceedings was filed. It was there said: “It was only necessary for the parties who desire to take an appeal to the circuit court to have filed a transcript of the proceedings in the county court with the clerk of the circuit court, with the names of the appellants and appellees, and to have had process issued and served on the appellees.”
In that case, however, as in this one, the appellants filed a petition which this court treated as a statement, and it was held sufficient to maintain the appeal. We see no reason to rule otherwise. The statement in this case sets forth every fact necessary to give the circuit court jurisdiction, and upon it summons was issued. There was, therefore, nothing substantial in the objection. Upon the trial, in the absence of admission in any way, the production of the county court judgment would be necessary; but while, as was said in the case above cited, and as was decided in Pryor v. Mizner, &c., 79 Ky., 232, an appeal may be taken by filing a transcript of the county court proceedings
As there must be another trial, it is proper to notice a question of evidence. Several of the contestants were introduced as witnesses upon that side. They testify to the conduct, the conversation and character of the testator. Their evidence is not, however, confined altogether to transactions with him, or those done or not done by him, or to his conversation. There appears to have been no objection, save upon the score of their competency as witnesses. The objection was not directed to particular portions of their testimony, but looked to their entire exclusion as witnesses. It was proper, therefore, to overrule it, even if their evidence in the respects mentioned had been incompetent. It was not, however. Section 605 of our Civil Code makes every person of understanding competent to testify, saving some exceptions mentioned in the succeeding section, and which says: “No person shall testify for himself concerning any
While this statute greatly enlarged the competency of persons as witnesses, yet it intended to put them all upon an equal footing.
This is not an action, however, to establish a claim against a decedent, and thus reach his estate. In such a case the claimant can not testify to any statement of the deceased, or transaction with him. If permitted to do so, there would be no equality. In such a case the one who would be the litigant if alive, being silent in death, the other, in fairness, is required by the law to be silent also.
In a case like this one, however, all the litigants may testify. They are upon an equal footing; and to exclude them from doing so would restrict the operation of a remedial statute to an extent not intended by the law-making power.
This is shown by the fact that this court has repeatedly so decided, and the statute has in this respect remained unchanged. (Milton, &c., v. Hunter, &c., 13 Bush, 163; Cave’s Devisees v. Cave’s Heirs, 13 Bush, 452; Flood, &c., v. Pragoff, &c., 79 Ky., 607; Phillips’ Ex’r v. Phillips’ Adm’r, 81 Ky., 328.)
The decedent was a bachelor, and had been a member
The court below properly refused the instructions asked by the propounders, but the two given sua sponte by it were also objectionable.
The one is substantially the counter or negative of the other. It is, therefore, unnecessary to recite both of them. The first one, after, in its first clauses, properly instructing the jury in reference to the execution of the paper offered as the will, says: “And that at the time and in the act of executing said paper he had sufficient capacity and strength of mind and memory to take a comprehensive survey of his estate, and to know of what it consisted, and to remember and know who were the natural objects of his bounty, and that at the time, and in the act of executing • said paper, he had sufficient will power of his own to dispose of his estate with a fixed purpose and will of his own, and was not at the time and in the act of executing said paper dominated by some unnatural or irrational bias of mind, so as to overrule and control his own rational will power, you will write on said paper your verdict thus: We, the jury, find this to be the true last will of Joseph F. Williams.”
This instruction and the counter one were calculated to mislead the jury. A testator, if mentally compe