111 Ky. 241 | Ky. Ct. App. | 1901
Reversing.
On June 20, 1897, Thomas Woodford, a bachelor, died at the age of 73 years, leaving an estate of the value of more than $200,000. On April 23, 1897, he executed a paper, which is claimed by the appellants to be his last will and testament. His brothers, Sam, A. B. and Dr. Matt Woodford, survived him, as did also the sister, Lucy Buckner. His brother Sam is an old man, who seems’ tohave accumulated a large estate, and divided it among his children. His sister, Lucy Buckner, is an old lady, and has a large estate. His brother, Dr. Matt, appears to be unfortunately addicted to the morphine habit, and the testator seems to have had the impression that he was as well off with a small as a large estate. He has nothing except what was given him by his sister, Lucy, and the testator. The testator gave him a life- estate in a small farm, which he seems to have previously paid for, and allowed his brother to occupy it. He recited in the paper that his sister, Lucy, and brother, Sam, 'had ample means of their own. It appears from the will that he chose as a class his nieces and nephews, and made them equal in the distribution of his estate. Some of these nieces and nephews were children of deceased brothers and sisters, and others were the children of Lucy Buckner and his brothers, Sam and Matt. The will is contested upon the grounds that the testator did not have mental capacity to make it, or that it was obtained by undue influence. This court, in Broaddus’ Devisees v. Broaddus’ Heirs, 10 Bush, 299, and Bush v. Lisle, 89 Ky., 393 (11 R., 708) (12 S.W.,762), held there was no proof which tended to show a want of capacity in the testators to make wills, or that undue- influence had operated in the execution of the wills; hence reversed the cases, and directed the wills to be probated.
The court gave the jury three instructions. No. 1 was as to mental capacity, and No. 3 on the question of undue influence. As we have said, the burden to show a want of mental capacity to make the will was on the contestants. The burden was likewise on them to show it was procured by undue influence. In the instructions mentioned, the court disregarded this rule. In instruction No. 1, the court said: “If they believe from the evidence that the decedent, Thomas Woodford, at the time he executed the paper, offered in evidence, dated April 23, 1897, and read to the jury, had mind and memory enough to know his estate,” etc. By the language employed, the jury would infer that the burden was on the propounders to show that the testator had mind ,and memory enough to execute the will. It, in effect, told the jury that the burden of proof was upon the propounders to show mental capacity in the tes
The appellants offered an instruction which reads as follows : “If the jury believe from all the evidence that said said instrument of writing is consistent in its provisions, and rational on its face, then the presumption is that Thomas Woodford was of sound mind when it was executed.” This instruction is in accord with the opinion in Bramel v. Bramel, 101 Ky., 64 (18 Ky. L. R., 1076), (39 S.W.,520). In that case an instruction was given which reads as follows: “If the jury believe from all the evidence that said instrument of writing is consistent in its provisions, and rational on its face, the presumption is that said John Bramel was of sound mind at the time of its execution, and the burden shifts to contestants to show that he was not of sound mind at that time.” The instruction given in the Bramel case conforms to the rule announced in Milton v. Hunter;
In instruction No. 2, the court defined testamentary capacity, and it reads as follows: “Unless the jury believe from the evidence that the said Thomas Woodford, at the time he executed the paper offered in evidence and read to the jury, had mind and memory enough to know his estate, the nature, value, and extent thereof, and to know his relatives, the natural object of his bounty, and his obligation to them, and to dispose of his estate in a rational manner, and according to a fixed purpose of his own, they ought to find said paper not to be the last will and testament of the said Thomas Woodford.” The words' “in a rational manner” should have been omitted from the instruction. This court, in King v. King, said: “To say the testator must dispose of his estate fin a rational manner*
We think the court erred in admitting the “Lizzie Lisle letter,” but, owing to the fact there is a vast amount of testimony on the subject of mental capacity, we would not. reverse the case on account of this error. The judgment is reversed for proceedings consistent with this opinion.