Broaddus' Devisees v. Broaddus' Heirs
| Citation | 73 Ky. 299 |
| Parties | Broaddus's devisees v. Broaddus's heirs. |
| Decision Date | 13 October 1874 |
| Court | Court of Appeals of Kentucky |
APPEAL FROM MADISON CIRCUIT COURT.
C. F BURNAM, WM. CHENAULT, For Appellants,
Coke on Lyttleton, 360.
3 Bush 27, Hill, & c. v. Turner.
5 Mon 129, Fisher v. Cockerill.
5 Mon 140, Fisher v. Higgins.
6 Bacon's Abridgment, 370.
1 Blackstone's Commentaries, 44.
1 Ray's Reports, 179.
5 J. J. Marsh. 91, Shropshire v. Reno.
4 Bibb, 244, Harper's will.
5 Ind. 137, Addison v. Wilson.
4 Met. 168, Sechrest v. Edwards.
2 B. Mon. 80, Reed's will.
2 Bush, 614, Kevil v. Kevil.
7 Bush, 491, Munday v. Taylor.
7 Ala., Couch v. Couch.
3 Humphrey, 278, Gass v. Gass.
2 J. J. Marsh. 341, Elliott's will.
1 B. Mon. 351, Harrison's will.
4 Greenleaf, 220, Small v. Small.
1 Bush, 116, Turley's ex'r v. Johnson and Lillard.
6 Ga. 24, Potts v. House.
5 Herring, 459, Sutton v. Sutton.
1 Redfield on Wills, pp. 518-20, 528, 529.
1 Dow & C. L. 85, Lord Lamberton v. D'Alton.
1 Duvall, 259, Sarah v. Miller.
1 Duvall, 203, Harrel v. Harrel.
7 B. Mon. 655, Howard, & c. v. Coke, & c.
| 2 Lord R. 1352. | 3 Call, 268, 286. |
| 2 Cranch, 272. | 10 Mass. 437. |
| 7 Johnson, 477. | 12 Mass. 383. |
| 1 Denio, 128. | 16 Mass. 215. |
| 3 Shep. 134. | 20 Mich. 398. |
| 1 Scam. 335. | 43 N.Y. 130. |
17 B. Mon. 392, Tudor v. Tudor.
32 Miss. 411, McClintocke v. Curd.
34 Conn. 434, St. Leger's appeal.
21 Vt. 168, Converse v. Converse.
25 N.Y. 9, Delafield v. Parish.
27 Conn. 192, Dunham's appeal.
31 Ala. 519, Hughes v. Hughes.
15 N.J. 155, Gardiner v. Gardiner.
45 Ill. 485, Roe v. Taylor.
21 Ga. 552, Norris v. Stokes.
33 Ala. 555, Stubbs v. Houston.
TURNER AND SMITH & CAPERTON, For Appellees,
CITED
General Statutes, Act adopting sec. 3, p. 138.
Redfield on Wills, pp. 514-23, 528, 530.
4 Met. 173, Sechrest, & c. v. Edwards, & c.
2 Bush, 614, Kevil, & c. v. Kevil, & c.
1 Bush, 116, Turley's ex'r v. Johnson and Lillard.
1 Jarman on Wills, pp. 40, 41.
1 Duvall, 203, Harrel v. Harrel.
2 Bush, 557, Smith, & c. v. Kelly.
4 Dana, 422, Bennett v. Runyon.
5 Bush, 472, Sandford, & c. v. Smith, & c.
George W. Broaddus died in the county of Madison on the 31st of August, 1871, leaving a paper purporting to be his last will and testament, made and published on the 14th of June, 1870. He had been twice married, leaving surviving him six children by his first and five by his last wife. This paper was offered for probate in the Madison County Court by his widow. Cynthia Broaddus, and her five children; and upon the hearing their motion to probate was denied, from which an appeal was taken to the circuit court of the same county, resulting in a verdict and judgment rejecting the paper as his last will and testament.
The will was assailed in the court below on two grounds-- first, the want of capacity on the part of the testator to execute such a paper; second, the exercise of an improper and undue influence of the wife over the testator in procuring its execution.
The testator at the time of his death was about sixty-six years of age, and had been for many years an influential and prominent minister of the Baptist Church. He was well and favorably known in the county of Madison, where he died, and his intimate personal friends all concur in the statement that he was a man of excellent, if not superior, intellect, and possessed of a character evidencing an inflexible and determined will. His capacity for transacting all the ordinary business transactions of life is not controverted by a single witness, and his alleged imbecility of mind is in no manner established by those who are attempting to invalidate his will. He preached many of his best sermons a short time prior to his death, and in his daily intercourse with his neighbors and friends gave no evidence of any such decline in mental vigor as would incapacitate him from making a valid disposition of his estate.
It is insisted, however, by the contestants of this paper that the exercise of an improper influence by his wife over the testator caused its execution; that it was made and published in order to rid himself of the constant importunities of the wife as to the disposition he should make of his estate.
It is evident from the proof that the wife was desirous of having the remnant of the testator's estate secured to her children, the offspring of the second marriage; but her importunities were far from being such as to compel the testator to make such a disposition of his estate as indicated either a want of?? capacity or such an influence over him by the wife as deprived him of the power to act in accordance with his own wishes when considering the claims of all his children upon him.
His children by his first wife were very hostile to his last wife, and she in return made but little effort to conciliate or reconcile the unpleasant differences that existed between them, and, from the proof on this subject, the cause of these troubles originated as much from the one as the other. Those of the neighbors identified by association and relationship with the children by the former marriage detail facts showing that the testator was made unhappy by reason of the conduct of his wife toward these children; while, on the other hand, many of his nearest neighbors and most intimate friends, who were not only entitled to receive but had his confidence, give statements made by the testator himself when not in the presence of his wife or influenced by her, so far as the record shows, to the effect that his first children had treated his wife badly, and were the cause of the many troubles in the family; and while the blame no doubt, from the whole proof, may be attached, as is usual in such cases, to both parties, incidents connected with this unfriendly relation throw but little light upon the question of the alleged undue influence of the wife over the husband.
The only positive proof of the importunities of the wife in regard to the disposition to be made of the testator's estate comes from a witness who seems to have heard on two occasions at night (being in an adjoining room), through a partition-wall, the wife urging the husband to make such a paper and the latter begging to be let alone. This same witness seems to have been advising the testator that his wife was trying to get from him his estate, and to widen the breach, if possible, that then existed between members of this family. His statements come in such a questionable shape as entitle them to but little consideration, and, if true, make out no case of the exercise of any undue influence.
There is no proof in the case authorizing the conclusion that the influence of the wife was such as amounted to coercion or force, or destroyed the power of the testator to act in accordance with his own purposes in the disposition of his property, and certainly nothing in the record conducing to show that any improper influence was operating upon the mind of the testator at the time he executed this paper; but, on the contrary, the facts developed establish that the testator at the time was not only of sound mind and uninfluenced by any one, but did in fact make a judicious and rational disposition of his whole estate.
In the year 1865 he executed a will similar in nearly all of its provisions, giving to the children by his last wife the bulk of his estate. The present paper was drafted by his attorney in the town of Richmond, several miles distant from testator's residence, dictated in whole by the testator, and witnessed by two lawyers of the same town at his instance; all of whom, including the draftsman, testify that he was competent to execute such a paper and to understand and comprehend fully what he was doing at the time of its execution.
His children by his first wife had all been raised and educated; all but two of them had received from him advancements, and the most of them were prosperous in life; while some of his last children were quite young, all under age, uneducated, and with but little if any means except what property he had to give them. His estate was valued at about twenty thousand dollars, with an indebtedness of twelve or thirteen thousand, leaving about eight thousand dollars to be divided between these last children, from which, after deducting the value of the widow's dower or her life-estate, they would not receive each more than twelve hundred dollars.
Under these circumstances this paper was executed in accordance with a fixed purpose and by a testator whose intellect was unimpaired and uncontrolled by any such influences as induced him to execute it against his own wishes. The weight of the evidence not only sustains the validity of the will, but the preponderance of the evidence on that side of the issue is so great that no verdict on the facts of this record ought to be sustained rejecting it.
The court instructed the jury, at the instance of the contestants, " that gross inequalities in the provisions of a will, where no reason for it is suggested in the will or otherwise, requires satisfactory evidence that it was the full and deliberate offspring of a rational, self-poised, and clearly disposing mind."
The statement of such an abstract proposition might be unobjectionable in an argument upon the facts of a particular case; but to embody it in an instruction as a principle by which a jury is to be governed in determining the question of mental capacity is misleading and calculated to divert the minds of the jury from that issue to that of the inequality of the evarious devises between the objects of the testator's bounty. If unequal, the jury are...
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