Henning v. Stevenson

— 322 — Opinion of the court by JUDOS HOBSON Affirming Appellees offered for probate in. tbe Jefferson county court a paper purporting to be tbe will of Fannie Speed. Its validity was contested. Tbe county court admitted tbe paper to probate. Tbe contestants appealed to tbe Jefferson circuit court, where the case was beard before a jury, wbo also found in favor of the will. Judgment having been entered on tbe verdict, tbe contestants appeal to this court. Fannie Speed was tbe widow of Joshua F. Speed, wbo died in tbe year 1882, leaving an estate amounting to over $650,000. They bad no children. Mr. Speed, by bis will, after certain specific devises-, gave one-balf of bis estate to bis relatives and tbe other half'to bis wife. She received, under the will of her husband, about $325,000. She made her will in January, 1897, and died in tbe summer of 1902. At tbe time of her death her estate amounted to over $500,-000. Her husband was tbe partner of her brother, J. W. Henning, and her brother’s sons managed her estate for her with rare fidelity and goocl judgment. Some weeks before tbe will was ¡made, she sent and got some legal cap paper, and also got a former will she bad made. After this on two afternoons she remained in her room, and wrote with her own band, nobody being present or knowing what she bad written, tbe paper in- contest, placed it in an envelope, and delivered it to a lady who was living with her to keep as her will. Tbe lady declined to keep it, and finally it was delivered to her nephew, Mr. Henning, wbo bad it placed in a box in tbe vaults of tbe trust company, whence it was taken after her death, she having subsequently made some codicils to it that are not important. By her will, after a number of specific devices of no great value, she disposed of her entire estate. There was no question on- tbe trial, under — 323 — the evidence, bnt that the paper was wholly in the handwriting of the testatrix, and was executed and published as her will. Its validity was assailed on'the ground of incapacity and undue influence. The chief complaint made on the appeal is of the following instructions given by the court: “ (1) The court instructs the jury that they should find the paper dated January 5, 1897, read- in evidence and purporting to be the last will of Fanny Speed, and the four papers read in evidence as codicils thereto, to be the last will of Fanny Speed, unless they shall believe from the evidence that at the time she wrote the said papers, or wrote one or more of them, she was not of sound mind, or that she wrote one or more of them under the influence of some other person or persons. (2) .But if she was not of sound mind when she wrote the said papers, or one or more of them, they should find the paper or papers written by her when she was not of sound mind not to be her last will. (8) If she wrote the said papers, or any part ‘ of either of them, under the undue influence of any other person or persons as defined in instruction No. 5, the jury should find the paper or papers, or the parts thereof written under such undue influence, not to be the last will of the said Fanny Speed.” By instruction á the court defined mental capacity; by instruction 5 he defined undue influence; by instruction 6 he directed the jury .as to the form of their verdict. These wei*e- all the instructions given. The only instruction complained of is No. 1. This is complained of on the ground that the burden of proof. as to capacity continues upon the propounders throughout the case. But in Milton v. Hunter, 13 Bush, 103, this court, in a well considered opinion by Chief Justice Lindsay, condemned an instruction which placed the burden of proof as — 324 — to testamentary capacity upon the propounders, and laid ■down the rule that when they have proved the due execution ■of a paper, not irrational in its provisions, nor inconsistent in its structure, language, or details with the sanity of the testator, the presumption of law makes out for them a prima facie case, and the burden of showing incapacity on the part of the testator is shifted to the contestants. This rule has since been followed in Flood v. Pragoff, 79 Ky., 611 3 R., 372; Fee v. Taylor, 83 Ky., 259, 7 R., 248; Bramel v. Bramel, 101 Ky., 72, 18 R., 1074, 39 S. W., 520; Howat v. Howat, 41 S. W., 771, 19 Ky. Law Rep., 756; King v. King, 42 S. W., 347, 19 Ky. Law Rep., 868; Boone v. Ritchie, 53 S. W., 518, 21 Ky. Law Rep., 864; Woodford v. Buckner, 111 Ky., 241, 63 S. W., 617, 23 Ky. Law Rep., 628; Dunaway v. Smoot, 67 S. W., 62, 23 Ky. Law Rep., 2291. The evidence as to the execution of the will by the testatrix, and as to its being wholly in her own handwriting, was uncontradicted. There being no conflict of ¿evidence on these •matters, the court did not err in not submitting them to the jury, and in assuming, in the instruction,, that the testatrix had written the paper with her own hand. But it is insisted that the court erred in not submitting to the jury whether the paper was consistent in its provisions and rational on its face. Our attention is called to the fact that the instruction approved in Bramel v. Bramel and AAoodford v. Buckner, contained words submitting this question to the jury. But in the Bramel Case the instruction had been given on the trial, and the judgment of the circuit court was affirmed. In the AVoodford Case the Bramel Case was simply followed. In both these cases the only question considered by the court was as to the burden of proof. The form of the instruction, in so far as it relates to the words referred to, was not considered, and there is nothing — 325 — in either of these opinions to show that these words were deemed material. On the other hand, in Howat v. Howat and Boone v. Ritchie, instructions were approved which were substantially the same as. that complained of. It is a question •for the court to determine when a prima fade case has been made out. The court must determine this question, in will cases as in others, for himself, and frame his instructions to the jury accordingly. When the contestants have shown the execution of a paper, rational in its provisions, they have made out a prima facie case; and, when the court comes to instruct the jury, the rule is that he should! not instruct them as to the presumptions of law, but should simply so frame his instructions as to indicate the burden of proof, without expressly referring to it. Davis v. Paducah Railway Company, 113 Ky., 267, 68 S. W., 140, 24 Ky. Law Rep., 135. Under this rule the court • must determine for itself on whom the burden of proof rests, and so indicate in his instructions. When he has done this in a will case, it is a question for the jury, under all the evidence, whether the testator was of sound mind at the time of the execution of the will. In determining this question they may consider all the evidence before them, including the will itself, which, when wholly written by the testator, is potent evidence of the condition of his mind at the time. The rule is that the court should not in his instruction single out or give prominence to any, part of the evidence in the case. The instruction given by the court is .preferable to the form referred to in Bramel v. Bramel and Woodford v. Buckner, for it gives no prominence to any of .the evidence. The court did not determine for the jury that the will was rational on its face. It indicated nothing on this subject by the instruction. It simply indicated by the instruction the legal presumption in favor of sanity, without expressly referring to — 326 — it. The question to be determined by the jury as to the capacity of the testatrix was wether she was of sound mind at the time she made the will. On this question the court, by the instruction, indicated nothing, except the party on whom the burden of proof rested. The jury were left to decide the question on all the evidence before them. The will was before them, and they could give it such weight as they saw proper; but, after all, the question of testable capacity was the issue to be determined by the jury, and this was properly submitted to them in general terms, without any expression from the court giving' prominence to any part of the evidence before them. If the court had added to instruction No. 1 the statement that, in determining the capacity of the testatrix, they should consider all the evidence before them, and that in so doing they should consider the will itself and the nature of its provisions, its pi’actical effect would not have been at all different, for the will was before the jury, it was read and exhibited to them as the sole act of the testatrix, in which she was unassisted by any one, and it was of necessity, if rational or irrational, considered by the jury in coming to their verdict. The wife of one of the contestants was offered as a witness for them. The court refused to allow her to testify, and of this they complain. By section 606 of the Civil Code of Practice, neither a husband nor his wife shall testify for the other in actions of this character, except in actions which might have been brought by or against the wife if she had been unmarried, and in such actions either, but not both, of them may testify. The wife had no interest in the case, and, if she had been unmarried, might have testified. But the meritorious cause of action was in the husband and not in her, and it was not one of those cases in which either the husband or wife may testify. Those are the cases where — 327 — the meritorious cause of action is in the wife. Wise v. Foote, 81 Ky., 10, 4 R., 043. It is insisted, however, that, though she could' not testify for her husband, she might testify for the other contestants. It has been held that where the defendants are severally liable, and separate judgments may be rendered as to each, the wife of one is covpetent for the others. Dovey v. Lam, 117 Ky., 19, 77 S. W., 383, 25 Ky. Law Rep., 1157. But a will contest is not a case of this sort. The admissions of one devisee_ are competent against all the devisees, because they have a common interest in the same question, and must stand or fall together, being thus consolidated by their testator, and by their own act in claiming under his will. Beall v. Cunningham, 40 Ky., 399; Rogers v. Rogers, 41 Ky., 324; Gibson v. Sutton, 70 S. W., 188, 24 Ky. Law Rep., 868. The question to be determined here was whether the paper was the will of the testatrix. All the contestants and all the contestees must stand or fall'together. The judgment established a status which determined all their rights. The interest of one could not be separated from the interest of others. The wife of one of the contestants or devisees was not, therefore, a competent witness 'for her husband, or for any of the other parties joined with him as contestants or contestees. Wise v. Foote, 81 Ky., 10, 4 R., 643; Williams v. Williams, 71 S. W., 505, 24 Ky. Law Rep., 1326. Appellants also complain of misconduct of counsel in asking certain questions, the purpose of which was to show that the contestants were already rich, and that for this reason the testatrix acted! rationally in only giving them one-half of her estate. The contestants are heirs at law of the testatrix, the children of her deceased brother. If these people had been in indigent circumstances, this fact, if known to the testatrix, might have been shown by them as evidence that — 328 — the testatrix ignored the natural objects of her bounty. The proof shows that she was on very affectionate terms with her relatives, and was justly attached to them. To "explain why she, under these circumstances, gave them only one-half of her estate and devoted the other half to a certain charity, the propounded undertook to show that she had been for years much interested in this charity, and that her relatives were already abundantly provided for. The evidence was competent, for it oulj' placed the jury in the light of the circumstances surrounding the testatrix, and aided them in determining whether she took a rational survey of her estate and disposed of it according to a fixed purpose of her own. The questions objected to were excluded by the court on the ground that they related to the financial condition of the devisees at the time of the trial, and not to their condition at the time the will was made. As over five years had elapsed since the making of the will, the ruling of the court was proper, although by statute the will speaks as if executed by the testator immediately before his death. Ky. St., 1903, section 1839. But we do not see that there was any misconduct of counsel in asking the questions, for the admissibility of the evidence was a subject on which lawyers might well differ. But the court not having admitted it, we must presume that the jury tried the case under the evidence before them. We do not see anything in the record to indicate that the appellants were prejudiced by this matter; on the contrary, it is hard to see how the jury could have reached any other conclusion under the evidence. Appellants also complain that two physicians) called by them as experts were not allowed to take the will and explain to the jury from the will what evidences they saw, from the handwritng and the structure of the instrument, that the testatrix was suffering at the time from arterio sclerosis of the — 329 — brain. The witnesses were allowed to state to the jury fully the symptoms of the disease, and also to state, from a hypothetical case put to them, their judgment as to the testable capacity of the person indicated. To have allowed them to have taken the will and gone over it, stating what here and there they saw, in the omission of letters or proper punctuation, to indicate sclerosis, would have been to have opened up a wide field of inquiry. The court has a discretion in matters of this sort. The record before us comprises something like 1,000 pages. The real .facts about the testatrix were proved by a number of witnesses, and we do not see that there was an abuse of discretion on the part of the court in refusing to allow the evidence in question, or that, if admitted, it could have had any appreciable effect on the case. The will was before the jury. They could see and any attorney could call their attention to anything.in the will, either in the shape of the letters or the punctuation or the ■structure of the sentences, that indicated sclerosis. The experts were permitted to tell all the signs of the disease, and ■one person could apply the symptoms to the writing as well as another. Bad punctuation, or the omission of a letter herd and there, or badly constructed- sentences are not confined to people who are suffering with sclerosis of the brain; and, therefore, what the writing really indicated was to be determined, not alone from expert testimony, but from com* mon experience, as -other like questions. In view of the entire record, we conclude that appellants got their whole case fairly before the jury, and that there isf no substantial error to their prejudice shown by the record. Judgment affirmed.