Woodford v. Buckner

• Citation: 111 Ky. 241,63 S.W. 617
• Parties: WOODFORD et al. v. BUCKNER et al. [1]
• Decision Date: 07 June 1901
• Court: Court of Appeals of Kentucky

63 S.W. 617

111 Ky. 241

WOODFORD et al. v. BUCKNER et al. ^[1]

Court of Appeals of Kentucky.

June 7, 1901

Appeal from circuit court, Bourbon county.

"To be officially reported."

Contest by Lucy Buckner and others of the will of Thomas Woodford. Judgment for contestants, and Buckner Woodford and others the propounders, appeal. Reversed.

Beckner & Jouett, McMillan & Talbott, J. C. S. Blackburn, W. H. Holt and W. S. Pryor, for appellants.

Bronston & Allen, T. E. Ashbrook, E. M. Dickson, and J. S. Smith, for appellees.

PAYNTER C.J.

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 to have 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, 12 S.W 762, held there was no proof which tended to show a want of capacity in the testator to make wills, or that undue influence had operated in the execution of the will; hence reversed the cases, and directed the wills to be probated. In a very elaborate argument counsel for appellants insist that this court should reach the same conclusion from the facts of this case as was reached in the Broaddus and Lisle Cases, and reverse the case, and order the will probated. We have reached the conclusion that we should not do this, but that there was sufficient testimony offered by the contestants (appellees) to allow the jury to determine whether the testator had mental capacity sufficient to make a will, and whether it had been obtained by undue influence. In view of the great volume of testimony, it would be useless to discuss the evidence offered with the view of giving the reasons which have brought us to the conclusion stated. The propounders proved the due execution of the will, and, as it is not irrational in its provisions, nor inconsistent in its structure, language, or details, the presumption of law made out for them a prima facie case; and the burden of showing that the testator was not of sound and disposing mind and memory at the time of the execution of the will was upon the contestants. In Milton v. Hunter, 13 Bush, 170, the court condemned an instruction which altogether ignored the legal presumption of sanity, and said: "When the propounders of a will 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 that the testator was not in fact of sound and disposing mind and memory at the time of the execution of the will is shifted upon the contestants." In Howat v. Howat's Ex'r (Ky.) 41 S.W. 771, the court, in discussing the question as to where the burden of proof rested, said: "The ruling of the court in refusing this last above instruction was not error, as there was no testimony offered that contradicted in any way the testimony of the two attesting witnesses as to the execution, and their uncontradicted evidence made a prima facie case for propounders." In Boone v. Ritchie (Ky.) 53 S.W. 518, the court recognized the rule announced in Milton v. Hunter and Howat v. Howat's Ex'r, and condemned an instruction which reads as follows: "Unless the jury believe from the evidence that the testator, William Hill, was at the time of the alleged or claimed execution of the paper offered as his will of sound mind, they should find such paper not to be the last will and testament of said decedent." Hawkins v. Grimes, 13 B. Mon. 257; Flood v. Pragoff, 79 Ky. 607; King v. King (Ky.) 42 S.W. 347; Fee v. Taylor, 83 Ky. 259; Johnson v. Stivers, 95 Ky. 128, 23 S.W. 957,--are in accord with the cases referred to.

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 that 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...