Layer v. Layer

• Decision Date: 17 April 1901
• Parties: LAYER v. LAYER et al. [1]
• Court: Kentucky Court of Appeals

62 S.W. 15

110 Ky. 542

LAYER v. LAYER et al. ^[1]

Court of Appeals of Kentucky.

April 17, 1901

Appeal from court of common pleas, Jefferson county.

"To be officially reported."

Contest by William Layer of the will of Adam C. Layer. Judgment for the propounders, Christina Layer and others, and the contestant appeals. Reversed.

Hogan &amp Hogan and E. E. McCay, for appellant.

Zack Phelps and Fred Forcht, Jr., for appellees.

HOBSON J.

Adam C Layer died a resident of Jefferson county, in the year 1896 the owner of an estate amounting to something over $20,000, exclusive of life insurance. He left surviving him his wife, Christina Layer, and three children,--a son, William C. Layer, then about 26 years old, and two daughters, then 15 and 17 years old. In October before he died he made a will by which he devised all his property to his wife so long as she remained his widow, with the right to do with it as she pleased, but if she married she was to receive one-third of the estate, and the other two-thirds were to go to his two daughters, they to pay their brother, William Layer, $100. If his wife died without marrying or disposing of her estate, that portion which remained was to go to the two daughters, less the $100 to be paid to the son. If either of the daughters died childless before receiving the estate, her part was directed to go to her sister. The wife was named as executor and guardian of the daughters, without bond. The will was probated in the county court without opposition, but subsequently the son, William C. Layer, took an appeal to the Jefferson circuit court, and the case was there tried before a jury, who returned a verdict sustaining the will, and, his motion for a new trial having been overruled, he prosecutes this appeal.

The court below properly refused to instruct the jury peremptorily to find against the paper on the ground that the evidence did not show that the testator resided in Jefferson county, there being no plea of want of jurisdiction in the county court. The objection for want of jurisdiction could not be made in this way. Besides, the evidence in the record shows very clearly that the Jefferson county court had jurisdiction.

The bill of exceptions does not show that there was any testimony admitted over appellant's objection, or that he excepted to any ruling of the court in the admission of evidence. The only matters for decision are therefore the rulings of the court in giving and refusing instructions to the jury. To understand these, it is necessary to state briefly the evidence in the case. The proof for appellant tended to show that the testator had conceived the notion that appellant was not his son, and entertained a violent antipathy towards him; that he called him vulgar, unseemly names; beat him with a barrel stave, or anything he could get hold of; that he would tie him and whip him; showed no affection or kindness towards him; treated him cruelly; said he was no son of his,--was no Layer; that he was not his father; that he did not dress the boy as other men in his station dressed their sons, or give him like liberties; and that two or three years before he died he ran the son off with a big knife. The proof for the appellant also showed that he was a good son, very much afraid of his father, worked hard, and tried to obey his father's instructions and merit his approval, and that there was no foundation for the father's antipathy to him. The evidence for the appellees was very contradictory of that for the appellant, and showed that the boy himself was also of a stubborn disposition, not unlike his father, and that the collisions between them were not without his fault. It is earnestly insisted for appellees that the proof conclusively showing the father to be a man of good general capacity, who successfully managed his own business as a butcher until his death, the court should have instructed the jury peremptorily to find for the will, and that at least, under the evidence, a new trial should not be ordered. But the rule in this state is that, if there is any evidence, the question must be submitted to the jury, and, if it is to be submitted to the jury, it must be so submitted as to give the parties substantially a fair trial on the issue before the jury.

It is hard to understand how a father could treat his only son in the manner described by a number of witnesses in this record, unless we credit the testimony of the repeated declarations of this man that he was not the father of the boy. There seems to have been absolutely no ground for this belief, which was so exhibited in the conduct of the father as to impress upon the boy's mind the idea that he was an adopted child. There was also some proof of insanity in other members of testator's family, and that he had once set out to drown himself. Independently of the opinions of the witnesses, the jury, on the testimony for appellant, might well have inferred that the testator labored under an insane delusion that he was not the father of appellant, and for that reason left him out in his will. It is true there was testimony for the appellees from which the jury might have drawn the opposite conclusion; but the credibility of the witnesses was to be determined by the jury under proper instructions, and this court is not the tribunal in which it may be decided. The only question here is, was the issue fairly and intelligently submitted to the jury? Sherley v. Sherley's Ex'r, 81 Ky. 240.

The only instructions given by the court to the jury are as follows: (1) "The court instructs the jury that if they shall believe from the evidence that on the 11th day of October, 1895, at the time of the execution of the paper read as evidence herein, purporting to be the will of Adam C Layer, deceased, the said Adam C. Layer was of sound mind then they should find the said paper to be his last will; but unless he was of sound mind at the time the said paper was executed they should find that it is not his will" (2) "Soundness of mind in a testator means sufficient mental capacity upon his part to know his children and their natural claims upon his bounty, and to know his estate, of what it consists, and to be able to take a general survey thereof, and make a rational disposition thereof, according to a fixed purpose of his own." The court refused to instruct the jury, on motion of appellant, in substance, that if the testator, at the time of the execution of the paper in contest, was under any mental unsoundness, which operated upon him at the time to make a different disposition of his property from what he would otherwise have made, or if he was then under an insane delusion towards his son, and by reason of it made a different disposition of his property than he would have made but for it, then they should find the paper not to be his last will and testament. It is insisted for appellant that the instructions given by the court in no manner present the law of the case on the real question in issue; that under it no jury could, on their conscience, decide against the will, as it was admitted that the testator was sane as to other matters, and his general capacity was undisputed. It seems that this complaint is well founded, and that, under the instructions given them, the jury would understand that they were to find the paper to be the will of the testator, if he had general capacity at the time it was made, although he was laboring under an insane delusion in regard to his son, and the will was the direct result of this delusion. It is well settled that such is not the law. In 1 Redf. Wills, side page 70, the learned author says: "The degrees of monomania are very various. In many cases the person is entirely capable of transacting any matters of business out of the range of his peculiar infirmity, and he often manifests considerable sagacity and forecast in keeping the particular subject of his delusion from the knowledge of others. But more commonly he is not conscious of entertaining opinions different from the mass of men, even upon the particular subjects of his delusion, and refuses to be convinced of laboring in any degree under mental unsoundness." And again, on page 78, he says: "Whenever it appears that the will is the direct offspring of the partial insanity or monomania under which the testator was laboring, it should be regarded as invalid, though his general capacity be unimpeached." In Dew v. Clark, 1 Hagg. Ecc. 311, the testator was a sensible, clever man, conducting himself rationally in the...