82 Ky. 93 (Ky.App. 1884), Porschet v. Porschet

• Citation: 82 Ky. 93, 5 Ky.L.Rptr. 893
• Opinion Judge: PRYOR, JUDGE:
• Party Name: Porschet v. Porschet.
• Attorney: STOSSMEISTER, ROOT AND HAWKINS, AND W. LINDSAY FOR APPELLANT. NELSON & WASHINGTON FOR APPELLEES.
• Case Date: May 02, 1884
• Court: Court of Appeals of Kentucky

Page 93

82 Ky. 93 (Ky.App. 1884)

5 Ky.L.Rptr. 893

Porschet

v.

Porschet.

Court of Appeals of Kentucky.

May 2, 1884

1. The mere fact that the testator devised all his estate to a woman with whom he lived as his wife, when she was in fact the lawful wife of another, will not authorize the court to instruct the jury that the law presumes undue influence on the part of the devisee, and that, in the absence of any proof to the contrary, they must find against the will.

2. If the will be the offspring of a sound mind and disposing memory; although he devises all his property, to the exclusion of his brother and sister, to a person not his wife, it must be shown that undue influence has been exercised, in some manner, upon the testator, or else the will must be sustained. Undue influence can not be presumed, although the act of cohabitation is unlawful.

APPEAL FROM CAMPBELL CIRCUIT COURT.

STOSSMEISTER, ROOT AND HAWKINS, AND W. LINDSAY FOR APPELLANT.

The paper in contest was procured by the undue influence of the appellee, and the jury should have so decided, even if the true relation which existed between the parties had been known to the testator at the time of its execution.

The simple fact that the testator bore an unlawful relation to appellee creates the presumption of undue influence on her part, and the jury should have been so instructed.

(Redfield on Wills, vol. 1, 352, 529; 21 Ga. 552; Dean v. Negley, 41 Pa.St. Rep., 312.)

NELSON & WASHINGTON FOR APPELLEES.

If, as is claimed by appellants, the influence that produced the will was illegal only because it sprang from an unlawful relation, then the principle would be applicable to any other unlawful relation, and would destroy a will made under influences springing therefrom, although the testator, without being under restraint, could not be persuaded to make a will otherwise than as prompted by such influence.

There is no proof of improper influence, and the court properly instructed the jury that the mere fact that the relations between the devisor and appellee are unlawful is insufficient to authorize the jury to find against the will.

There must be proof of actual influence unduly used.

(Wise, & c., v. Foote, & c., January Term, 1883; 1 Bush, 123; 10 Bush, 304; 13 Bush, 169; Ib., 452; Ib., 652; 25 N.Y. 9; 34 N.Y. 991; 68 N.Y. 148; 26 Ver., 38; 35 Ver., 238; 42 Ills., 376; 90 Ills., 134; 2 Heis., Tenn., 250; 17 Ohio St. 302; Cheves Rep., S. C., 37; 1 Rich. Rep., S. C., 80; 26 Wis. 104; 15 N.J. Ch., 343; 24 N. J; Eq. Rep., 431; 70 N.Y. 387; 20 Pa. St., 329; 41 Pa. St., 312; 43 Pa. St., 46; 65 Pa. St., 368; 69 Pa.St. 177; 84 Pa. St., 217; 89 Pa. St., 220; 37 Ind. 343-4; Redf. Am. Will Cases, 417; 1 Redf. on Wills, p. 522, 526, and notes; 2 Gr. Ev., sec. 688.)

OPINION

PRYOR, JUDGE:

The will in controversy was admitted to probate by the county court as the last will of John L. Porschet, and, on an appeal to the circuit court, the same result followed, and from the judgment in that court the brother of the testator, who is the only party contesting the validity of that paper, has appealed to this court.

The testimony in the case leaves no doubt as to the mental capacity of the testator to create such a paper, and the ground relied on for defeating the probate is the alleged undue influence of the...