Porschet v. Porschet

Citation82 Ky. 93
PartiesPorschet v. Porschet.
Decision Date02 May 1884
CourtCourt of Appeals of Kentucky

APPEAL FROM CAMPBELL CIRCUIT COURT.

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

NELSON & WASHINGTON FOR APPELLEES.

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

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 devisee in procuring the devise in her favor.

The will was executed some three years prior to the testator's death, in the absence of the sole devisee, and was written by an attorney who knew the testator well, and this legal adviser, together with his family physician, as well as others, testify that the devisor had full possession of his mental faculties at the date of the paper and long after, the physician testifying that he retained full possession of his mental power up to the day of his death.

When the will had been executed, the attorney writing it sealed it up in a large envelope and handed it to the devisor, and after death it was found sealed in the same envelope, and opened for the first time in the office of the county judge. The testator talked to his attorney before and after he made the will as to his property, and he at no time expressed a desire to make any other disposition of his estate than as found in the will in question.

The devisor and the devisee were both Germans, advanced in years, and had lived together as man and wife for eight or ten years prior to the death of the testator. The marriage ceremony was solemnized in the usual form, and the testator no doubt believed at the time that there was no impediment to the marriage, but it was developed that Mrs. Porschet had married one Beck, from whom she had separated, and several years thereafter married the testator without having obtained a divorce from Beck. There is proof conducing to show that the testator ascertained after the marriage that his supposed wife had a living husband at the time of his marriage with her, and, on the other hand, it is attempted to be shown that this fact was concealed from the testator, and, in making his will, that he disposed of his property under the belief that the appellee was his lawful wife. She swears that her family knew this obstacle to the marriage, and that her son-in-law agreed to obtain a divorce for her for fifty dollars, and after handing him the money, he announced in a few days thereafter that the divorce was obtained and the marriage could take place. In this statement she is confirmed by her son, and if she believed that the marriage was legal, it must have proceeded from this undertaking on the part of her son-in-law to obtain the divorce, and her faith in the truth of his statement that it had been obtained. Both her daughter and son-in-law testify against her, and contradict her testimony on that point, but the jury seem to have credited the old lady, and rejected the testimony of the son-in-law and daughter, and with their hostility towards the mother and the unnatural position occupied by them in the case, the jury might well have concluded that the refusal of the appellee to give her daughter a part of this property caused the interest they have manifested for the success of the contestant.

While the evidence is conclusive as to mental capacity, there is some evidence from which might be inferred the existence of undue influence on the part of the appellant, and it may be proper, therefore, to notice the instruction of which the appellant complains.

The third instruction, given at the instance of the appellee, is in substance: "That the fact of cohabitation between appellee and the testator, the appellee having a living husband is not of itself sufficient to authorize a verdict against the will, unless the fact be accompanied by undue influence over the testator by the devisee, but the jury may consider that fact, together with all the facts in evidence, in order to ascertain whether or not such undue influence was exercised."

This instruction embodies the law of the case, unless the unlawful relation existing between the testator and the devisee is of itself sufficient to establish undue influence.

The influence arising from such an unlawful relation must be exercised over the mind of the testator in such a manner as to invalidate the will, and if not improperly executed, or the testator left to dispose of his property according to his own wish and desire, we see no reason for disregarding his will from the mere fact that he has seen proper to give his estate to one who has sustained to...

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1 cases
  • Murphy's Ex'r v. Murphy
    • United States
    • Court of Appeals of Kentucky
    • November 29, 1901
    ...... other. To the same effect, see Cave's Devisees v. Cave's Heirs, 13 Bush, 452, and Porschet v. Porschet, 82 Ky. 93, 56 Am. Dec. 880. The majority of. the court are of the opinion--the writer not concurring. therein-- that the same rule is ......

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