Bramel, &C. v. Bramel, &C.
| Decision Date | 12 March 1897 |
| Citation | 101 Ky. 64 |
| Parties | Bramel, &c. v. Bramel, &c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM MASON CIRCUIT COURT.
E. L. WORTHINGTON FOR APPELLANTS.
C. D. NEWELL ON SAME SIDE.
W. H. WADSWORTH, J. N. KEHOE, A. D. COLE OF COUNSEL ON SAME SIDE.
L. W. ROBERTSON FOR APPELLEES.
COCHRAN & SON ON SAME SIDE.
This is an appeal from a judgment of the Mason Circuit Court establishing a paper executed by John Bramel as his last will. He died in March, 1891, in the seventy-ninth year of his age. Although illiterate, he appears, from the evidence in the case, to have been a strong-minded, active and successful man of business, and at the time of his death he and his brother, Turner Bramel, had accumulated a considerable fortune. He had never been married, but for the last forty years of his life had lived with his brother, Turner, whose wife, Martha, attended to the housekeeping duties. The appellants contested the will upon grounds of want of testamentary capacity and undue influence. By his will he left his estate to the wife and four children of his brother Turner, with the exception of an insignificant legacy to a colored boy living on the place, and a legacy of $1,000 to a favorite grandniece. His surviving brothers, and the children of his deceased brother and sisters, were entirely omitted in the will. The testimony in the case is quite conflicting, and shows that he had been in failing health for some time prior to the making of the will, which was followed by his death about seven weeks later. He had grown feebler, and was disposed to make little physical exertion, and showed a tendency to dose at intervals, the symptoms being those which usually accompany old age.
The will was drawn by W. W. Ball and attested by Ball and Thomas Wells, who came to his place for the purpose, having been sent for, according to the testimony, by him. It appears by their testimony that he dictated the terms of the instrument to Ball; that after being written out it was read over to him; he expressed his satisfaction with it, and signed it by mark in the presence of the attesting witnesses.
The contest was not instituted in the county court, nor, indeed, until some twelve months after probate.
Under the circumstances of this case — this will disposing of his estate in an apparently rational manner for the benefit of those with whom he had lived the greater part of his life, who had cared for him in his declining years, and with whom his relations necessarily were closer and more intimate than with anyone else — we should be slow to disturb the verdict of the jury sustaining the will, unless it was manifestly against the evidence, or unless for errors of law to the prejudice of appellant's substantial rights. We can not say that the verdict was manifestly against the weight of the evidence. On the contrary, the will itself was a rational one, such as a man in his circumstances might naturally be expected to make; and the circumstances proven in the case do not seem to us to show that any undue influence was exerted over the testator. So far as his testamentary capacity is concerned, the fact of his dictation of the will without, so far as appears from the evidence, any suggestion whatever by those present as to the disposition which he should make of his estate, is, of itself, evidence of a disposing mind, which would seem to require direct and specific evidence to the contrary to rebut it. Such evidence is not wholly lacking, but it is offset by much evidence, not only of parties directly interested in the result of the contest, but by disinterested witnesses. We are of the opinion that the verdict was not against the evidence, and we will, therefore consider the errors of law claimed to have been committed upon the trial.
Numerous instructions were given and refused on both sides, and, to those given, the court, of its own motion, added two.
Instruction 1 is as follows: "If the jury believe from all the evidence that the instrument of writing read in evidence was subscribed by John Bramel in the presence of two credible witnesses, who subscribed it with their names in his presence, and that said John Bramel, at that time, was of sound mind, they will find said instrument to be his will."
To this instruction the objection is urged that it was calculated to confuse the jury by requiring them to decide issues which should have been decided by the court; that it put to them, first, the question whether John Bramel signed the paper, and the further question whether the two witnesses were present when he signed it, and signed it as witnesses in his presence. There being no dispute about these matters, it is argued that the court, and not the jury, ought to say whether the paper was properly executed. This contention is sound, upon the authority of Word v. Whipps, 16 Ky. Law Rep., 403. But in this case, as in the case cited, the error was not prejudicial to the rights of appellants, for the jury, by their verdict, found that it was so subscribed, a conclusion to which the court must have come as a matter of law. A further objection to this instruction is that it required the jury to pass upon the question of whether the attesting witnesses were credible witnesses or not, and that, by coupling the question of credibility of these two witnesses with the testamentary capacity of the testator, an advantage was given to the propounders of the will by giving undue weight and prominence to their testimony.
It is true that in the case of Fuller v. Fuller, 83 Ky., 345, this court held that the word "credible" was used in the statute in the sense of competent, and that it was for the court and not for the jury to determine the question of the competency of the attesting witnesses. In that case the propounders of the will complained of the submission of the question to the jury as requiring the jury to decide in their favor a question which, in that case, should have been decided in their favor by the court as matter of law. We can conceive that the jury might in some cases have been misled to the prejudice of the propounders by such an instruction, as it required them to satisfy the jury that the witnesses were credible; but we do not think that this error was prejudicial to the appellants. In the Fuller case the court refused to reverse, although the error in that case was against the propounders.
It is further urged that instruction 7 was erroneous as being inconsistent with instruction 1. That instruction was as follows: "If the jury believe from the evidence that the paper in contest was obtained by undue influence exerted on John Bramel, either by any of the beneficiaries named in the paper, or by any other person, then they will find that the paper in question is not the last will of John Bramel," following with the definition of undue influence.
Appellants claim that these instructions are contradictory; that in one they were instructed to find for the propounders, if they believed Bramel to be of sound mind, and in the other to find against them, if they believed he was unduly influenced. This court has often held that...
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