Hudson v. Adams' Adm'r

• Citation: 49 S.W. 192
• Parties: HUDSON et al. v. ADAMS' ADM'R et al. [1]
• Decision Date: 27 January 1899
• Court: Court of Appeals of Kentucky

49 S.W. 192

HUDSON et al. v. ADAMS' ADM'R et al. ^[1]

Court of Appeals of Kentucky.

January 27, 1899

Appeal from circuit court, Hardin county.

"Not to be officially reported."

Contest by J. R. Hudson and others of the will of Elizabeth Adams. Verdict and judgment for the will, and the contestants appeal. Reversed.

J. P O'Meara, E. Dudley Walker, Weed S. Chelf, John C. Graham and J. S. Sprigg, for appellants.

J. P Hobson and S. H. Bush, for appellees.

HAZELRIGG C.J.

On an appeal to the circuit court from an order of the county court probating a paper purporting to be the last will and testament of Elizabeth Adams, the trial court, after the hearing, peremptorily instructed the jury to find for the will. The sole question before us is as to the correctness of this instruction. The propounders introduced four witnesses, who had attested the will and a codicil, and by them proved the one execution of the papers, and the competency of the testatrix. The contestants then introduced some five witnesses, who knew Mrs. Adams more or less intimately, and who testified that, in their opinion, she was not mentally competent to make a will, to know her estate, and make a disposition of it according to a fixed purpose of her own. She was some 70 years of age, and quite feeble. There was also some proof, by these and other witnesses, conducing to show unusual influence over the testatrix by some of the appellees.

We agree that the mere opinions of witnesses as to mental incapacity is entitled to but little weight, unless accompanied by proof of corroborating and supporting facts. And we do not regard the facts stated by contestants' witnesses as satisfactorily or conclusively supporting their conclusions. Still we think there was sufficient legal evidence of incompetency, in view of the age and surroundings of the testatrix, to entitle the contestants to have a jury consider the proof. If, by any allowable deduction from the facts shown on the trial, the contention of the contestants might have been sustained by the jury, the court should not have instructed peremptorily. Such an instruction is not permissible "where the testimony on both sides is of the same kind and tendency, and where the jury must compare and weigh it, and when they can give credit, or refuse to give credit, to either a part or the whole of the testimony on each side." Thompson v. Thompson, 17 B. Mon 22. In Society v. Underwood, 11...