Hoerth v. Zable

• Decision Date: 31 October 1891
• Citation: 92 Ky. 202,17 S.W. 360
• Parties: Hoerth et al. v. Zable et al.
• Court: Kentucky Court of Appeals

17 S.W. 360

92 Ky. 202

Hoerth et al. v. Zable et al.

Court of Appeals of Kentucky.

October 31, 1891

Appeal from court of common pleas, Jefferson county.

"To be officially reported."

Action by Minnie Hoerth and others against William J. Zable executor, and others, to test the validity of a will. Judgment for defendants. Plaintiffs appeal. Affirmed.

Bennett J.

John Hoerth died testate on the 8th of February, 1889. He made his will the day before his death, which was admitted to probate by the Jefferson county court,-the county of John Hoerth's residence. He devised all his estate, valued at about $5,000, to the appellee William J. Zable, in trust for his youngest child, the appellee Nick Hoerth, who was about 15 years old; and he excluded his other four children from any interest in his estate, except the sum of $5 each; and they contested the probate of the will on the ground of undue influence and incompetency of the testator; and, these issues having been decided against them, they have appealed to this court. There is not the slightest evidence or circumstance tending to show that the boy Nick Hoerth influenced, unduly or otherwise, his father to make the will, nor do counsel make such contention. William J. Zable, the trustee and executor, is the only person that appellants, by their counsel, charge with having unduly influenced the testator to make the will. This charge, as we think, is entirely groundless. There is no evidence whatever to that effect. It seems that the testator had been making his home with Mr Greenert, an old friend, ever since his wife obtained a divorce from him; that the room that he occupied was a small one adjoining a bar-room; that he requested William J. Zable another old friend, to remove him to his house, where he would have a better room, etc.; that Mr. Zable did as he was requested; that after the removal of the testator to his house he, at the request of the testator, sent for the testator's lawyer to draft his will; that he attested the will, so did Mr. Greenert, the appellants principal witness; that he did many other acts of kindness for the testator; but there is no fact or circumstance proven from which undue influence can be inferred.

The next question is, was the testator competent to make the will? Upon that subject, Mr. Luber, the testator's lawyer, who wrote the will, says that the testator was competent to make it; that the testator told him how he wished to dispose of his property, and to whom; that after he had drawn up the will, and read it to the testator, he understood it, and approved of it, save in one particular only, to-wit, he had the time that the devisee was to take possession of the property changed from 21 years of age to 25...