Bush v. Lisle

• Decision Date: 17 December 1889
• Parties: BUSH et al. v. LISLE et al.
• Court: Kentucky Court of Appeals

12 S.W. 762

89 Ky. 393

BUSH et al. v. LISLE et al.

Court of Appeals of Kentucky.

December 17, 1889

Appeal from circuit court, Clark county.

"To be officially reported."

Wm Lindsay and W. M. Beckner, for appellants.

Breckenridge & Shelby and Chas. J. Bronston, for appellees.

LEWIS C.J.

This is an appeal from a judgment rendered on verdict of the jury finding a paper dated October 30, 1876, and probated in the county court, not to be the true last will and testament of F. M. Lisle, who died in February, 1879, at about the age of 58 years, without wife or child. He left no parents, his mother having died before he did, though, subsequent to date of the paper, those who would have inherited his estate in case of no will being one brother, three sisters, and children of each of four sisters who were dead. But he devised, or attempted to devise, the whole of his estate, of value about $20,000, consisting of choses in action, money and land, to his sister Minerva Bush, her four daughters, and husband, Robert E. Bush; there being given to the last named who was appointed executor, five shares of bank-stock, to each of the four nieces specified land and money, and to the sister the residue. The grounds upon which the other heirs at law assail the validity of the paper as a will are want of testamentary capacity and undue influence. It appears that previous to 1866 the decedent had been a professional gambler, but as the effect of syphilis contracted many years previously, from which he never recovered, and probably of excess and dissipation, he became a wreck physically, losing his hair, teeth, eye-sight partially, and use of his lower limbs, to such an extent as to make crutches necessary for locomotion; and in that condition he went to the residence of a double cousin, in Fayette county, Rufus Lisle, with whom he staid until 1867 or 1868, when he removed to the house of Robert E. Bush, in Clark county, where he remained until his death; a room adjoining the dwelling-house having been constructed, at his own instance and expense, for him to occupy. Within a year or two after going to the house of his brother-in-law he became totally blind, unable to walk, and from his mouth, which was drawn out of its natural shape offensive matter escaped. So he thereafter required and received from those to whom he attempted to give his estate the most assiduous, careful, and affectionate nursing and attention. He had before going there, as relief from his intense suffering in his lower limbs, contracted, and continued to his death, the habit of using morphine, a comparatively large quantity of which he daily consumed. It further appears that during paroxysms of physical pain he was excessively and offensively profane and blasphemous; and from these two habits, both mental incapacity to make a will and undue influence are sought to be deduced as existing facts. There is no evidence whatever of unreasonable prejudice on his part towards any of the contestants, nor that he was swayed or prompted to abandon any fixed purpose, or to ignore any worthy or recognized claim on his bounty. On the contrary, 10 years before the date of the paper, when his situation was less deplorable than it afterwards became, and when there is no evidence that he was not entirely rational, he offered to give his whole estate to his cousin Rufus Lisle to secure a home and needful care and attention while he lived, and the disposition he finally made of it was consistent, natural, and commendable, because intended as a grateful recompense, no more probably than adequate, to those who did minister to him in affliction. The person who wrote the paper testifies that besides himself no one was present; that the decedent was in full possession of his mental faculties, and, without aid or suggestion, dictated the paper as written; and the provisions of it show not only a preconceived and fixed plan for disposing of his estate, and full knowledge of the character and value of it, and the persons to whom it was left, but unusual intelligence of the legal effect of restraints and limitations put upon the devises to his nieces.

Of the very large number of witnesses who...