Opinion of the Court by
Reversing.
The appellant, Isabella Wood, a distant relative of Mary J. Reynolds, deceased, prosecuted an appeal to the Kenton circuit court from a judgment of the Kenton county court, probating the will of the decedent, seeking a reversal of the probate judgment upon the sole ground that the testatrix, at the time of the execution of her -will (January 16, 1911) and at the time of the execution of the codicil thereto (September 6, 1915), was of such unsoundness of mind as incapacitated her in law to execute
It will thus he seen that the principal question for determination is one of fact, which must be solved from the testimony introduced and an application of the law as announced by this court relating to testamentary capacity to the facts. An 'examination -of the cases from this court involving will contests upon this and other grounds (upon some of the most recent of which the court based its judgment, and which we will hereafter refer to) will demonstrate that in the main ¡each case must depend upon its own peculiar facts as disclosed by the testimony and, as we construe the cases, there is no difference between the quantum of testimony necessary for the submission of the case to the jury of the issue of mental capacity of the testator, and the issue of undue influence, as was held by the trial court. It concluded that in the later opinions of this court it was held that the rule commonly known as the “scintilla rule” did not apply to the issue of mental capacity of the testator, but did apply to that of undue influence. We find no such distinction in our opinions; but there has been a marked tendency of late in will contests,, as well as in other cases, to modify the scintilla rule, as it has sometimes been applied in former cases, so as to enlarge the quantum of evidence necessary to create it, and .to narrow the difference between that evidence and that deemed necessary to save a verdict from attack upon the ground that it is flagrantly against the evidence, and to bring the two nearer together. In other words,. this court- has, in recent years, approached toward the conclusion (not yet adopted) that there is no logical reason for submitting a case to the jury, under the doctrine of the scintilla rule when a verdict, supported only by a scintilla of evidence, would be set aside as flagrantly against the testimony. Cases pointing in that direction are, Crump v. Chenault, 154 Ky. 187; Poll v. Patterson, 178 Ky. 22; Langford v. Miles, 189 Ky. 515, and others referred to therein. It is only to this extent has there been any modification of the practice in the particulars referred to.
The will devised to appellant’s daughter $500.00, and the codicil gave the daughter the right to occupy free of rent the house where testatrix died for a term of three years after her death. The appellant was given in the will only one dollar, and the remainder of the property, after the payment of funeral expenses and debts, was devised to charitable purposes.
Without stating in detail the testimony of the witnesses for appellant, it is sufficient to.say that some seven or eight of them (not including interested parties) testified in substance, and without contradiction, that the testatrix was penurious, curious and exceedingly eccentric; that she was very much of a recluse, scarcely ever leaving home and was exceedingly slovenly in her dress, on some occasions going upon the streets with her clothing wrong side out; that prior to, at the time of, and succeeding the execution of the will she almost constantly was engaged in the most unnatural conduct of crying, giggling, singing and dancing by herself and while alone in her room, and also in the back yard of her premises in the day time, and that these different varities of acts and.
It results therefore that the judgment should be and it is reversed with direction's to grant a new trial and for proceedings consistent with this opinion. ■