Dossenbach v. Reidhar's Ex'x

• Citation: 245 Ky. 449,53 S.W.2d 731
• Parties: DOSSENBACH et al. v. REIDHAR'S EX'X et al.
• Decision Date: 14 June 1932
• Court: Court of Appeals of Kentucky

53 S.W.2d 731

245 Ky. 449

DOSSENBACH et al. v. REIDHAR'S EX'X et al.

Court of Appeals of Kentucky

June 14, 1932

Rehearing Denied Nov. 22, 1932.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Will contest by Josephine Dossenbach and others against the executrix of Daniel F. Reidhar and others. From a judgment in favor of the will, pursuant to a directed verdict contestants appeal.

Affirmed.

David A. McCandless, Morton K. Yonts, Woodward, Hamilton & Hobson James P. Edwards, and William T. McNally, all of Louisville, for appellants.

Alfred Selligman, Robert T. Burke, J. Matt Chilton, Wallis W. Downing, and Selligman, Selligman & Goldsmith, all of Louisville, for appellees.

J. J. Kavanaugh and Arthur B. Bensinger, both of Louisville, for Millet heirs.

Allen P. Dodd, of Louisville, for Liberty Bank & Trust Co.

WILLIS J.

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 Orphans Home, St. Vincent Orphanage, the German Protestant Orphans Home, the Little Sisters of the Poor, share and share alike.

I hereby appoint The Fidelity and Columbia Trust Company executor of this will and recommend the employment of E. J. McDermott and J. Matt Chilton as Atty's, whenever an attorney is needed.

Witness my hand this 8th day of July, 1916.

Dan'l F. Reidhar."

The contestants claim that the failure to provide for remote relatives of Reidhar who would inherit his estate in case of intestacy is a token of incapacity calling for explanation, and, when considered in connection with other evidence, contains sufficient probative force to carry the case to the jury. Kevil v. Kevil, 2 Bush, 614; Zimlich v. Zimlich, 90 Ky. 657, 14 S.W. 837, 12 Ky. Law Rep. 589; Walls v. Walls, 99 S.W. 969, 30 Ky. Law Rep. 948; Meuth v. Meuth, 157 Ky. 784, 164 S.W. 63; Helm v. Neathery, 226 Ky. 42, 10 S.W.2d 474; Mullins v. Mullins, 229 Ky. 103, 16 S.W.2d 788; Hagedorn v. Scott, 228 Ky. 582, 15 S.W.2d 479; Moran v. Moran, 233 Ky. 526, 26 S.W.2d 565; Same case, second appeal, 238 Ky. 403, 38 S.W.2d 207.

The propounders assert that the will manifested due concern for the only relative near enough to have any reasonable claim on the bounty of Reidhar, and that this will is essentially and intrinsically the product of sound reasoning and competent consideration. Shelley v. Chilton, 236 Ky. 221, 32 S.W.2d 974; Langford v. Miles, 189 Ky. 515, 225 S.W. 246; Wigginton v. Wigginton, 194 Ky. 385, 239 S.W. 455; Lee v. Kirby, 186 Ky. 603, 217 S.W. 895. Provision was made by the will for an uncle who lived with the testator and who was the only relative closely associated with the testator, although a nephew visited him frequently. It made bequests to two personal friends. The residue of the estate was devoted ultimately to worthy objects of charity. Reidhar was 66 years of age when he executed his will. He lived thirteen years thereafter, but made no changes therein, or any additions thereto. He seemed to be satisfied with what he had done. The business life of Reidhar began when he was a young man. His father was president of a bank, and Reidhar was employed in a minor position at the institution. From the earliest annals of his history, Reidhar was abstemious in his habits, economical in his mode of life, and exact in his business transactions. He was thrifty to an extreme degree. His father left a substantial estate to Reidhar and his sister. The two children resided in the parental home and maintained it practically without change. His sister devised her heritage to Reidhar, and with the combined capital he built up an estate in excess of $700,000. It was not the mere accretions of savings, but the result of prudent investment and reinvestment in real estate which appreciated in value. The achievement was in itself an indication of no mean financial ability. Reidhar's social life was limited, apparently, and was not especially significant. He was a bachelor, and after the death of his sister maintained the home alone. A favorite maternal uncle, somewhat older than Reidhar, lived with him. He was the Louis P. Millet mentioned in the will. Several witnesses testified to a friendship with the testator reaching back to boyhood. Whilst some of the witnesses did not believe that he ever gave anything to charity, and thought that he was extremely close in money matters, if not miserly, it cropped out that Reidhar had helped to educate a needy relative; that he had contributed to various charities; that he had sent money to his relatives abroad; that he was considerate of those associated with him, and loyal to every social, personal, and legal obligation. The evidence tends to show that the testator was a quiet and unostentatious man, obsessed with his occupation, but several instances illustrate his humanity, his appreciation of friends, and his recognition of social duties. He had some maternal relatives to whom he was particularly devoted. His paternal relatives for the most part lived abroad and were unknown to him. The two relatives on the Reidhar side that lived in Louisville had displayed no interest in his life and had not established or maintained contact with him. He manifested no aversion to any of them, but was simply unacquainted with them.

These admitted facts constitute the...