Hoerth, &C., v. Zable, ex'R, &C.
| Decision Date | 31 October 1891 |
| Citation | 92 Ky. 202 |
| Parties | Hoerth, &c., v. Zable, Ex'r, &c. |
| Court | Kentucky Court of Appeals |
A. J. SPECKERT FOR APPELLANTS.
AARON KOHN, O'NEAL, JACKSON & PHELPS OF COUNSEL ON SAME SIDE.
W. R. KINNEY, W. P. LINCOLN, MARSHALL & LOCHRE FOR APPELLEES.
John Hoerth died testate on the 8th of February, 1889. He made his will the day before his death, which was admitted to probate by the Jefferson County Court, the county of John Hoerth's residence. He devised all his estate, valued at about $5,000, to the appellee, Wm. J. Zable, in trust for his youngest child, the appellee Nick Hoerth, who was about fifteen years old; and he excluded his four other children from any interest in his estate, except the sum of five dollars each, and they contested the probate of the will on the ground of undue influence and incompetency of the testator; and these issues having been decided against them they have appealed to this court.
There is not the slightest evidence or circumstance tending to show that the boy, Nick Hoerth, influenced, unduly or otherwise, his father to make the will; nor do counsel make such contention. Wm. J. Zable, the trustee and executor, is the only person that appellants, by their counsel, charge with having unduly influenced the testator to make the will. This charge, as we think, is entirely groundless. There is no evidence whatever to that effect. It seems that the testator had been making his home with Mr. Greenert, an old friend, ever since his wife obtained a divorce from him; that the room he occupied was a small one adjoining a bar room; that he was taken sick and was confined to that room; that he requested Wm. J. Zable, another old friend, to remove him to his house where he would have a better room; that Mr. Zable did as he was requested; that after the removal of the testator to his house, he, at the request of the testator, sent for the testator's lawyer to draft his will; that he attested the will, so did Mr. Greenert, the appellant's principal witness; that he did many other acts of kindness for the testator, but there is no fact or circumstance proven from which undue influence can be inferred.
The next question is, was the testator competent to make the will?
Upon that subject, Mr. Lieber, the testator's lawyer, who wrote the will, says that the testator was competent to make it; that the testator told him how he wished to dispose of his property and to whom; that after he had drawn up the will and read it to the testator he understood it, and approved of it save in one particular only, to-wit: he had the time that the devisee was to take possession of the property changed from twenty-one years of age to twenty-five years of age, saying that the devisee would be more likely to take care of the property at the age of twenty-five...
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