152 Ky. 242 | Ky. Ct. App. | 1913
Opinion of the 'Court by
Affirming.
Dennis C. Rigg died' a resident of Robertson county in December, 1911. His will, which had been executed
‘ ‘ I have an equal affection for 'all my children, and only decline to will any part of my land to my daughter for the reason that I am obligated to my two sons for the land, they having worked hard with me in paying off my past indebtedness, and made it possible with their labor given to me for me now to own my land free of debt, and it is due them that I should make my will in this way, and same is made free from any suggestions from them, and free from influence of any kind exerted by them, or either of them, or any other person or persons.”
Mrs. Wood appealed from the order of the county court probating the will. The case being heard in the circuit court before a jury, there was a verdict and judgment in favor of the will. She appeals.
It is unnecessary for us to set out in detail the evidence. The testator was a man of good sense and strong will naturally. He w.as seventy odd years old when the will was written and lived with his two sons on the land. His wife had died 'four or five years before. About ten years before Ihe had had a stroke of apoplexy or sun stroke, and from this time on, suffered more- or less with his head at times; But as long as he lived he transacted his own business, and the great weight -of the evidence shows that he was regarded by those who knew him as fully competent to do business. There was sufficient evidence of incapacity and undue influence to take the case to the jury, but we cannot say that the verdict of the jury is against the weight of the evidence. Two grounds are especially relied on for reversal.
The court allowed the two sons to show that they had worked hard with their father in paying off his indebtedness and made it possible .by their labor for him to own the land free of debt. They showed that the land was mortgaged and their father much involved -when
The court at the conclusion of the evidence, gave the jury these instructions:
“1. The court instructs you to find' the paper read in evidence to be the will of D. C. Rigg, unless you shall believe from the evidence that at the time of its execution the said Rigg was not of sound mind or that the execution of the paper was procured by undue influence, and if you so believeyou should find said paper not to be thg will of D. U. Rigg, deceased.
“2. A person is of sound mind in making a will, if at the time of its execution he has such mental capacity as to enable him to know the natural objects of his bounty, his obligations to them, the character and value of his estate, and to dispose of it according to a fixed purpose of his own.
“3. Undue influence as used in these instructions is such an influence as obtains dominion over the mind of the decedent to an extent that destroys free agency on his part in the disposal of his estate, and constrains him in respect thereto, to do that which he would not have done if left to the free exercise of his own judgment, and it is not material when this undue influence was exerted if it was present and operating on the mind of tire decedent at the time the paper read in the evidence was executed.
“4. Nine or more of the juiy may make a verdict, but if a less number than the whole jury agree on a verdict, those agreeing thereto must sign it.”
The instructions were practically taken from the opinion of this court in Watson v. Watson, 137 Ky., 25, and have been often approved. It is complained, how
Judgment affirmed.