109 Ky. 321 | Ky. Ct. App. | 1900
Opinion op the court by
Affirming.
•This is a contest over the probal ion of the will of W. H. Hays, who died in Bullitt county in June, 1897. The .instrument is dated in September, 1896, and contains two codicils, the last one dated in March, 1897. By the judgment of the county court the will was ordered to probate. On the appeal to the circuit court, the jury returned a verdict for the paper as the will of W. H. Hays, deceased. The verdict reads: “We of the jury find the paper marked ‘A’ to be the last will and testament of W. H. Hays, deceased.” From that judgment of the circuit court probating the will this appeal is prosecuted.
Appellant insists as grounds for reversal (1) that the verdict is not supported by the evidence; (2) that it is not responsive, does not refer to the codicils at all, or find one way or the other respecting codicils; (8) errors of the court in refusing to permit appellant to introduce certain
As to the first objection, that the verdict is not sustained by the evidence, we are of opinion that this assignment of error is not well taken. There is .considerable testimony on both sides of the question. We are not prepared to cay that the verdict is flagrantly against the evidence, and unless we could so say the universal rule of this court is not to disturb the verdict. The proof shows that decedent, at his death, was upwards of 80 years' old, and that in December, 1895, he had a stroke of paralysis, which was followed in May, 1890, by a second stroke; yet it is shown that after this second attack he improved, and was able to go to Louisville, and took a great interest in the national political campaign of that year. Indeed, it is insisted by one witness, a physician, that because this old gentleman, who had always» been a Democrat, espoused the cause of its regular party nominee, and advocated the principles of the party platform of that year (“free silver”), it'Was evidence of his unbalanced mental condition. This is given as an example of the testimony to show that the question of testator's menial condition was fully and exhaustively investigated by both sides. The testator’s every act seems to have been proven before the jury, and With this evidence before them, we do not feel authorized to say their verdict was against the evidence.
The will and two codicils were written on the same paper. It seems that the verdict finding that the paper is the last will and testament of W. IT. Hays is sufficiently responsive. The codicils were proven just as the body of the will was proven, and, being all on one paper, there was no necessity of separate verdicts as to the codicils
The court refused to permit a witness for appellant to state that, on an occasion prior to tjhe second stroke of paralysis of, W. H. Hays, the witness heard Mrs. Harriet P. Hays, wife of W. H. Hays, and a beneficiary under the will, say that the mind of her husband was not what it had been, and related an incident to fortify the statement. We are of opinion that the refusal of this erddence is not such error as will justify a reversal. It is cumulative merely, and is not of such character as would necessarily or probably have changed the result of the trial. It was a statement of the wife, made some months before the will was written, and, if taken to be literally true, would not' mean he was incompetent to make a will. The mind of the testator at eighty-four evidently was not what it once was, yet it may have been sufficient to enable him to make a valid and legal will, disposing of his estate rationally and according to a fixed ' purpose of his own.
It is also insisted that appellant should have been permitted to state, When called in rebuttal, that her brother*, a devisee under the will, had stated that his father, testator, was incompetent to make a will. Coming, as it did, in rebuttal, the admissibility of this evidence was in the discretion of the court, and we can not s'ay that there was an abuse of discretion. It may be, as counsel contends, that they were expecting the brother to be introduced as a witness, when they would cross-examine him on that point, and contradict him if he denied it, but that is not sufficient excuse. By sub-section 8 of section 606 of the Civil Code of Practice, as amended by the act of February,. 1898 (with an emergency), it is provided: “A party
The court gave to the jury instruction No. 3, as follows: “According to law, soundness of mind in making a will is for the testator to. have such mental capacity as to enable him to know the objects of his bounty, the character and value of his estate, and to make a rational survey of his estate, and dispose of it according to a fixed purpose of his own.” It is insisted that this wa:s error, because the jury were not permitted or directed to pass on the question as to whether the disposition made by the testator was rational, according to a fixed purpose of his own. This identical instruction was approved in the case of King v. King (Ky.) 42 S. W., 347, and it meets our approval now. The instruction submits to the jury the propositions: Did the testator know the objects of his bounty, the character and value of his whole estate, miake a rational survey of the estate as a whole, 'and did he dispose of it according to a fixed purpose of his own? As said in the case of Newcomb’s Ex’r v. Newcomb, 96 Ky., 120. (27 S. W., 997): The manner of the disposition was
It is insisted that in the case at bar the testator devised to his only daughter, appellant, an estate charged to her at $7,000, when in fact it is only worth about $200. The clause in question is -as follows: “I give and devise to my beloved wife, for and -during her natural life, the house and improvements on which we live, including all that part of the home place south of line running about east and west with the line of fence .on the south side of the field called the ‘Blue-Grass Field,’ and one hundred and fifty acres called the ‘I-’each Orchard Tract,’ and at her death to my daughter Kate Wilson, but in the event she should die without having lawful issue of hete body living, I then said lands shall descend to my iheirs at law. Said lands shall be charged to her at the sum of seven thousand dollars.” It is insisted by counsel in brief that under this clause appellant, Kate Wilson, is devised an estate, by reason of the conditions therein, of only $200 in value, while it is to be charged to her at $7,000. We do not so construe this article. It provides a life estate to the- wife, and, if Kate Wilson be living at the' death of the wife, she gets the land in fee. The land goes to the heirs -at law
It is insisted that, as testator left considerable estate undevised, this is another reason why the’ parper should not be probated, or, rather, why the jury should have found against the paper. It appears that testator was in debt some, and it was his intention, no doubt, to leave some property undisposed of to pay his debts; and then, again, by valuing the estate devised, he seems to have realized there would or might be a surplus after the payment .of his debts, and out of this surplus his children would, if possible, be made equal by the law. We are of opinion that the will rationally disposed of testator’s estate, and from thé evidence the jury were fully authorized to find, as they did, that he tos of sound mind, and that the paper was the last will of W. EL Hays, deceased. There appearing no substantial error to the prejudice of appellant, the judgment is affirmed.
