Dossenbach v. Reidhar's ex'X

• Decision Date: 22 November 1932
• Citation: 245 Ky. 449
• Parties: Dossenbach et al. v. Reidhar's Ex'x et al.
• Court: United States State Supreme Court — District of Kentucky

245 Ky. 449

Dossenbach et al. v. Reidhar's Ex'x et al.

Court of Appeals of Kentucky.

Decided June 14, 1932. (Common Pleas Branch, Third Division).

Rehearing Denied November 22, 1932.

1. Trial. — Case is for jury, if there is any evidence tending to sustain cause of action upon which issue is joined.

2. Trial. — In determining whether case is for jury, court views "evidence" in aspect most favorable to complaining party.

Term "evidence" includes facts proved and inferences reasonably deducible therefrom.

3. Trial. — In determining whether case is for jury, court may not rest decision upon unreal or remote inferences or base inference upon inference.

4. Trial. — To take case to jury, proved facts and legitimate inferences must be substantial and relevant, carrying quality of proof, and fit to induce conviction.

5. Wills. — "Testamentary capacity" consists of mind and memory sufficient to know natural objects of testator's bounty and his duty to them, and to know extent and character of his estate, to take rational survey thereof, and to dispose of his property in accordance with fixed purpose of his own.

6. Wills. — Testator's thrift and abstemious habits held without probative force, as respects testamentary capacity.

Testator's thrift, frugal habits of living, wearing cheap

clothing, and the like, had no tendency to prove testamentary incapacity, since they were mere matters reflecting testator's culture and taste and amounted to nothing more than difference of opinion between testator and witnesses as to what was appropriate to a man in his circumstances.

7. Evidence. — Opinions of witnesses constitute competent evidence in will cases.

8. Evidence. — Opinions of witnesses are insufficient to take case to jury, unless facts upon which opinions are based tend to establish lack of testamentary capacity.

9. Evidence. — Physician's testimony that deceased was of egocentric type of people who suffer from delusion of poverty held not responsive to question respecting testamentary capacity, and without probative weight.

Hypothetical question whether testator had mind and memory sufficient to know his estate, to take rational survey thereof, to know his relatives, the natural objects of his boundary, and his duty to them, and to dispose of his estate according to fixed purpose of his own, was based on scattered incidents covering isolated and widely separate occasions, and presented no question of science or medical skill, and witness' answer that testator represented type of people who were self-centered, under a form of delusion carrying with it idea of poverty, which delusion develops into kleptomania, was not responsive to question, bore no rational relation to subject involved, and added no probative weight to circumstances upon which question was predicated.

10. Evidence. — Physician's testimony that testator was not likely to be of sound reasoning, based on testator's pulling up chair to hear conversation between physician and sick relative, held not evidence of mental impairment.

11. Evidence. — Physician's opinion against testator's testamentary capacity, based on factors observed many years after execution of will and not connected with conditions existing when will was written, held without probative force.

12. Evidence. — Physician's opinion against testamentary capacity, not based on scientific matters, held without probative force.

Physician's opinion, based on acquaintance with testator, that he regarded testator as miserly, eccentric, and without affection, and that he doubted very much whether testator had capacity of knowing or realizing the extent of his property, was based upon same character of conduct as were opinions of nonexpert witnesses, and was not such an unequivocal opinion of informed expert as constituted a scintilla of substantive evidence.

13. Evidence. — Opinions of experts upon subjects of common knowledge

have no greater probative value than opinions of nonexperts.

When expert opinion is rested upon simple facts of life and everyday occurrences, it possesses no more weight or value than that of any other intelligent person, since upon matters of common knowledge and everyday experiences, ordinarily intelligent man can make appropriate deductions and derive correct conclusions.

14. Evidence. — Expert opinion is accepted in dealing with insanity or disease.

15. Evidence. — Physician's opinion that testator lacked testamentary capacity, based on witness' opinion that testator was miser, held without probative value.

16. Evidence. — Cumulative effect of evidence may be greater than individual items composing it.

17. Evidence. — Mere cumulation of unsupported opinions, based on isolated and disconnected facts without probative weight, does not give probative force to evidence.

18. Wills. — Under evidence in will contest, issue being testamentary capacity, verdict held properly directed in favor of will.

Appeal from Jefferson Circuit Court.

DAVID A. McCANDLESS, MORTON K. YONTS, WOODWARD, HAMILTON & HOBSON, JAMES P. EDWARDS, and WILLIAM T. McNALLY for appellants.

ALFRED SELLIGMAN, ROBERT T. BURKE, J. MATT CHILTON, WALLIS W. DOWNING, and SELLIGMAN, SELLIGMAN & GOLDSMITH for appellees.

J.J. KAVANAUGH and ARTHUR B. BENSINGER for Millet heirs.

ALLEN P. DODD for Liberty Bank & Trust Co.

OPINION OF THE COURT BY JUDGE WILLIS.

Affirming.

Daniel F. Reidhar died on December 11, 1929, at the age of 79 years. His holographic will dated July 8, 1916, was promptly probated. A contest of the will was instituted by remote paternal relatives. The circuit court peremptorily instructed the jury to find for the will, and the contestants complain. The sole ground of attack upon the will was that Reidhar lacked testamentary capacity when he executed the instrument. The action of the circuit court is challenged upon the ground that the evidence was sufficient to justify a submission of the case to the jury upon the issue of testamentary capacity. The rule in this jurisdiction is that a case must be submitted to the jury if there is any evidence tending to sustain the cause of action upon which issue is joined. In determining that question, the court views the evidence in the aspect most favorable to the complaining party. Holliday v. Holliday, 161 Ky. 500, 171 S.W. 156; Palmer v. Smith, 211 Ky. 105, 276 S.W. 1055; Mullins v. Mullins, 229 Ky. 103, 16 S.W. (2d) 788; Humphrey v. Neal, 199 Ky. 498, 251 S.W. 637; Mossbarger v. Mossbarger, 230 Ky. 230, 18 S.W. (2d) 997; Franzman's Ex'rs v. Nalty, 208 Ky. 686, 271 S.W. 1034; Wood v. Corcoran, 190 Ky. 621, 228 S.W. 32; Broyles v. Able, 208 Ky. 672, 271 S.W. 1040; Oder's Ex'r v. Webster, 224 Ky. 551, 6 S.W. (2d) 690; Tombragel v. Tombragel's Ex'r & Trustee, 232 Ky. 493, 23 S.W. (2d) 919, 920; Woodruff v. Woodruff, 233 Ky. 744, 26 S.W. (2d) 751. By the term "evidence" is included the facts proven and the inferences reasonably deducible therefrom. But a decision may not be rested upon unreal or remote inferences. A pyramiding of inferences is not regarded as sound reasoning, and is not a permissible predicate for a conclusion. Sutton v. L. & N.R. Co., 168 Ky. 81, 181 S.W. 938; National Surety Co. v. Redmon, 173 Ky. 297, 190 S.W. 1081; Siemer v. C. & O. Ry. Co., 180 Ky. 113, 201 S.W. 469; United States v. Ross, 92 U.S. 281, 23 L. Ed. 707; Broughton v. Congleton Lumber Co., 235 Ky. 534, 31 S.W. (2d) 903; Ferguson v. Billups, 244 Ky. 85, 50 S.W. (2d) 35, decided May 20, 1932. And the proven facts and legitimate inferences drawn therefrom must be something of substance and relevant consequence, carrying the quality of proof, and having fitness to induce conviction. Clark v. Young, 146 Ky. 377, 142 S.W. 1032; Crump v. Chenault, 154 Ky. 187, 156 S.W. 1053; Brent v. Fleming, 165 Ky. 356, 176 S.W. 1134; Newman v. Dixon, B. & F. Co., 205 Ky. 31, 265 S.W. 456; Bodine v. Bodine, 241 Ky. 706, 44 S.W. (2d) 840; Jones v. Beckley, 173 Ky. 841, 191 S.W. 627; Gay v. Gay, 183 Ky. 245, 209 S.W. 11.

The record is very large and we shall consider the testimony, for the sake of convenience and clarity, first in its separate phases, and then in its cumulative effect Testamentary capacity consists of mind and memory sufficient to know the natural objects of the testator's bounty and his duty to them, and to know the extent and character of his estate, to take a rational survey thereof, and to dispose of his property in accordance with a fixed purpose of his own. Meuth v. Meuth, 157 Ky. 784, 164 S.W. 63; Hagedorn v. Scott, 228 Ky. 582, 15 S.W. (2d) 479.

At the threshold stand the admitted and uncontradicted facts. The will was written by the testator thirteen years before his death. Its inherent character, structure, and effect are put forward as potent evidence of the capacity and character of the testator. It was written by the testator unaided, and constitutes a clear and concise expression of his wishes. It reads:

"I, Dan'l F. Reidhar, do hereby make this my last will and testament, hereby revoking all others heretofore made by me. I hereby give and devise to my Uncle, Louis P. Millet, absolutely, all personal property of which I may die possessed, except my stock in The German Insurance Bank, and the dividends on these stocks I devise to May Bush Raub during her lifetime and I direct my executor pay same to her free from the control of any husband she may have and at her death said stock to go absolutely to The St. Joseph's Orphans Home. All of my real estate of which I may die possessed I devise to my Uncle Louis P. Millet during his lifetime and at his death or my death if I survive him I direct that all of said real estate be sold upon such terms and in such manner by my executor, as it deems advisable, and the proceeds of same be distributed as follows, to wit: To the Masonic Widows & Orphans Home the sum of Two Thousand Dollars; to J. Matt Chilton One thousand dollars; and the balance I direct shall be equally divided among the St. Joseph's...