Farmers Bank & Trust Co. v. Harding, Executor
| Decision Date | 27 March 1925 |
| Citation | 209 Ky. 3 |
| Parties | Farmers Bank & Trust Company, Executor, et al. v. Harding, et al. |
| Court | United States State Supreme Court — District of Kentucky |
1. Wills — Invalid Will may be Validated by Execution of Valid Codicil. — Invalid will may be validated by execution of valid codicil.
2. Wills — Revoked Will May be Revived by Valid Codicil. — Under Ky. Stats., sections 4833, 4834, will which has been revoked may be revived by valid codicil.
3. Wills — Proof of Execution of Codicil May be Sufficient to Probate Entire Instrument. — In some instances proof of execution of codicil may be sufficient to probate entire instrument.
4. Trial — Verdict Set Aside if Instructions are Disregarded, though Verdict be Correct and Instructions Erroneous. — Verdict will be set aside if the jury has disregarded the instructions even though they were erroneous and the verdict was correct.
5. Wills — Instruction, Not Permitting Jury to Find for or Against Constituent Parts of Codicil to Will, Erroneous. — In contest of probate of will and codicil thereto, instruction, not permitting jury to separate the codicil into its constituent parts and find for or against any part thereof, held erroneous.
6. Wills — Ambiguous Verdict Finding Against Will, but for Codicil, Construed in Accordance with Instructions. — Where jury found against will on basis of undue influence, but for codicil which was divided in two parts, one ratifying will and one making original devise, verdict would be construed as finding only for devise, in view of erroneous instruction not permitting parts of codicil to be separated; it being clear that jury would not find against will and at same time find it was legally ratified.
7. Trial — Instruction Held Not Cured by Others. — Instruction, which did not permit jury to find for or against constituent parts of codicil to will, held not cured by another instruction which referred to codicil as unit without any separation into constituent parts.
8. Wills — Propounders Entitled to New Trial, where Ambiguous Verdict was Rendered Under Erroneous Instructions. — In contest on will where verdict of jury was based on erroneous instructions not permitting separation of instruments into constituent parts and denied will, while upholding codicil which affirmed will in part, and in part created no devise, propounders, while not entitled to judgment probating entire instrument, were entitled to new trial before properly instructed jury.
9. Wills — Devise in Codicil, Upheld by Judgment Not Appealed from, Not Affected by Grant of New Trial. — Devise in codicil held not affected by grant of new trial as to issue of validating will, where judgment upholding such devise was not appealed from.
10. Wills — Instruction as to "Undue Influence" Held Erroneous. — In contest of will, instruction failing to include in definition of "undue influence" the idea that it must be present and operative on mind of deceased at time of execution of papers in contest held erroneous.
Appeal from Henderson Circuit Court.
J.L. DORSEY, JR., Y. CLAY and E.L. McDONALD for appellant.
JOHN C. WORSHAM for appellee.
Reversing.
On June 30th, 1920, Charles L. Harding executed a paper purporting to be his will, and on July 16th a codicil thereto, both of which were properly witnessed. His death occurred July 26th, 1920. These papers were probated in the county court as his last will. In a contest in the circuit court the codicil was upheld and the original paper rejected.
For brevity reference will be made to C.L. Harding as the "testator" and to these papers as the "will" and "codicil."
Testator was a bachelor, 47 years of age. He had three brothers, Dan, Albert and W.J. Harding, and one sister, Mrs. Florence Chapman.
In the will the entire net estate was devised in trust for the use of Mrs. Chapman, Dan and Albert Harding, with the remainder in the share of each to his children. William and his children were disinherited. It states in explanation of this that the testator had already given William various amounts aggregating over $20,000.00, setting out a number of specific items, and that this is a full, equal, one-fourth interest in his estate.
The codicil devised $2,000.00 to Miss Lillian Metz, a trained nurse who had been in constant attendance upon testator for several months, there being no other devise.
Aside from that devise these words appear:
The testator had executed prior wills but the codicil is written with pen and ink upon the paper of the will of June 30th, 1920, so that there can be no question that it is the one he seeks to ratify.
It appears that the statement in the will that testator had already given W.J. Harding various amounts aggregating $20,000.00 was untrue as to practically every item mentioned, but that, on the contrary, while he had made presents to William and his family, he had received from William more pecuniary favors than he had bestowed.
The two were partners for a long time and intimately associated; Charles had lived in William's house as a member of his family without the payment of board, and in his last illness the same hospitality was extended to his nurse, Miss Metz, and he was devotedly attached to each of them, much more so than he was to any of his other relatives, and he manifested this in former wills introduced in evidence.
Aside from this there was sufficient evidence of undue influence and lack of testamentary capacity existing at the time of the execution of each paper to submit those issues to the jury.
Instructions one, two, three and five given by the court are in these words:
(1) "You will find the will, including the codicil read in evidence, to be the will of C.L. Harding, unless you believe from the evidence that the said C.L. Harding was, at the time of the execution thereof, of unsound mind, or the execution of said papers procured by undue influence.
(2) "That soundness of mind, in the connection of making a will, means the possession of such mentality as enables one making a will to know his estate, its character, value and extent, to know the natural objects of his bounty and his duty to them, to make a rational survey of his estate, and to dispose of it according to a fixed purpose of his own.
(3) "That, by undue influence is meant, influence obtained by flattery, importunity, threats, or some other mode by which a dominion is acquired over the will of the testator, destroying his free agency or constrain him to do against his will what he is unable to refuse."
(4) ". . .
(5) "That the jury may find both papers, the will and the codicil, or the will or codicil, to be or not to be the will of the said C.L. Harding, as they may believe from the evidence under the foregoing instructions."
The other instructions are not material here.
The verdict of the jury reads:
"We, the jury, find the will in question not to be the will of the said C.L. Harding, but find the codicil attached to be his will."
At the rendition of the verdict the propounders moved the court to probate both papers as the will of C. L. Harding. This was overruled and they excepted. Thereupon the court adjudged ". . . that the will of C.L. Harding, deceased, dated June 30, 1920, . . . is not the last will and testament of said C.L. Harding, but that the codicil to said will of date July 16, 1920,. . . is the last will and testament of the said C.L. Harding."
They excepted to this order, and their motion for a new trial being overruled they have appealed. Contestants were satisfied with the result and did not pray a cross-appeal.
It is argued that in returning a verdict upholding the codicil the jury necessarily found that at the time of the execution of the latter paper C.L. Harding was of sound mind and free from undue influence; that as the codicil expressly ratifies the former paper a finding in favor of the codicil validates the entire instrument, regardless of any infirmity that may have existed in the former at the time of its execution. Therefore, so much of the verdict as finds against the original will is a nullity and should disregarded. If such is the meaning of the verdict and if it is...
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Ball v. Commonwealth
... ... whole law of the case. See Farmers' Bank & Trust Co ... v. Harding's Ex'r, 209 Ky. 3, 272 ... ...