Boone v. Ritchie

• Citation: 53 S.W. 518
• Parties: BOONE et al. v. RITCHIE et al. [1]
• Decision Date: 31 October 1899
• Court: Court of Appeals of Kentucky

53 S.W. 518

BOONE et al. v. RITCHIE et al. ^[1]

Court of Appeals of Kentucky.

October 31, 1899

Appeal from circuit court, Nelson county.

"Not to be officially reported."

Contest by James H. Ritchie and others of the will of William Hill. Judgment for contestants, and Cynthia A. Boone and others the propounders, appeal. Reversed.

Nat. W Halstead, for appellants.

Geo. S & John A. Fulton and John S. Kelley, for appellees.

WHITE J.

This is a contest over the will of William Hill. The appellants are the executor and devisees, propounders of the will; and appellees, contestants. The will was probated in the county court, and an appeal was taken to the circuit court. A trial before a jury in the circuit court resulted in a verdict against the will. This verdict was, for some reason not apparent in the record, set aside. A second trial resulted in a second verdict against the will. After reasons and motion for a new trial had been overruled, this appeal is prosecuted.

Appellants propounders, in reasons for new trial, assign as error of the trial court the giving of instructions 2, 3, and 4, and the admission of testimony as shown by the bill of exceptions to have been objected to.

Instruction No. 2 reads: "If the jury believe from the evidence that the paper A was procured to be executed by undue influence, they should find said paper not to be the will of said decedent; or, if they believe from the evidence that any part of said paper was procured to be executed by undue influence, they may find such part not to be the last will and testament of said decedent." Instruction No. 3 reads: "Influence, by whatsoever art obtained, which would give dominion over the will of the testator to such an extent as to destroy his free agency, is undue influence, when exercised over the testamentary act, whether by direction or indirection, or obtained at one time or another." Instruction No. 4 reads: "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."

We are of opinion that instructions Nos. 2 and 3 were error, for the reason that, after a careful examination of the record, we fail to find there was any evidence on which to submit the question of undue influence to the jury. The proof clearly shows that all steps necessary to the valid execution of the will were taken, and under the proof the only question presented was mental capacity of decedent, William Hill. In the case of Milton v. Hunter, 13 Bush, 163, at page 170, this court 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. The opinions of this court in the Singleton Will Case, 8 Dana, 316, and in Rogers v. Thomas, 1 B. Mon. 390, are to some extent conflicting: but in the case of Hawkins...