Godman v. Aulick

• Decision Date: 12 November 1935
• Citation: 261 Ky. 268
• Parties: Godman et al. v. Aulick et al.
• Court: United States State Supreme Court — District of Kentucky

261 Ky. 268

Godman et al. v. Aulick et al.

Court of Appeals of Kentucky.

Decided November 12, 1935.

1. Evidence. — Opinions of witnesses, whether lay or expert, that testator did not have testamentary capacity, are insufficient to authorize submission of issue to jury or to sustain verdict for contestants of will, unless based on facts tending to establish lack of testamentary capacity.

2. Wills — Evidence of testator's lack of testamentary capacity due to use of intoxicants held insufficient for jury.

Appeal from Pendleton Circuit Court.

A.H. BARKER for appellants.

ROGERS & ROGERS, O.M. ROGERS and JAMES ROGERS for appellees.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Reversing.

The will of J.H. Godman, which was probated on February 22, 1933, by an order of the county court of Pendleton county, was contested on an appeal to the Pendleton circuit court, by Maude Aulick, Claude Godman, James Godman, Jr., Lois Braun, and Donald Aulick, on the ground that the testator "did not have mind and memory sufficient to make and execute a valid will and was unduly influenced to execute it, but for the exercise of undue influence, he would not have executed it."

On the trial to a jury in the circuit court, the testimony in favor of the contestants and contestees was directed solely to the ground of mental incapacity of the testator. The testimony of the witnesses establishing the signing and publishing of the will in the manner and form required by the statutes is uncontradicted. The jury's verdict was that the paper introduced and identified by the attesting witnesses was not the will of J.H. Godman.

The contestees are here insisting that a verdict should have been directed for them, and if they are mistaken in this, the evidence is insufficient to sustain it. A large number of witnesses testified for the contestants, and a like number for the contestees. A number of the adult daughters and sons of J.H. Godman were witnesses of the contestants.

The substance of the testimony of the witnesses for the contestants is that J.H. Godman had been addicted to excessive use of intoxicants for 35 or more years. It was his habit to indulge in "drinking sprees" for a week or two, or a month or two. When not under the influence of liquor, the evidence of both the contestants and the contestees shows that he was intelligent, energetic, industrious, and employed his time farming, and thus had accumulated an estate, though not large. He engaged in business until his death, but for a number of years next before it he did not as actively and vigorously employ his time and energy. He was 72 years old at the date of his death. He had no ailment of mind or body before his last illness, except that condition which was incident to his age and periodical drinking. He executed his will on the 14th day of March, 1929, about four years before his death, in the presence of J.J. Barton and Charles W. Thompson. Barton was a neighbor of J.H. Godman, and Charles W. Thompson was the cashier of the Pendleton Bank of Pendleton County. It was written with a pencil by Barton, at the home of Barton, in the presence, and at the request, of J.H. Godman. Its terms and provisions were dictated by Godman to Barton, and after it was written by him with pencil, it was read to, and approved by, Godman. Then it was copied on a typewriter by Barton, and carried by Barton and J.H. Godman to the Pendleton Bank, where it was signed by Godman in the presence of Barton and Thompson, and in turn signed by them as attesting witnesses in the presence of Godman. Barton is unequivocal in his statement that at the time the will was dictated by Godman, prepared and carried to the bank, and witnessed by him and Thompson, Godman was absolutely free from the influence of intoxicants. Thompson, who had been well acquainted with Godman for years, deposed that at the time the will was signed by Godman, and attested by him and Barton, he observed nothing indicating Godman was under the influence of intoxicants or not in the full possession of his normal mental faculties. The evidence shows that on the day the will was signed and published, Godman gave checks to others in payment of accounts he owed them. The witnesses of the contestants merely testified in a general way as to the frequency and habit of Godman drinking intoxicants to a state of drunkenness. All of them admitted that Godman, except when under the influence of intoxicants, was an intelligent, active, capable, successful farmer until he attained that age at which men generally slow down or lessen their activities.

Many of the contestants' witnesses, in answers to hypothetical questions, expressed his or her opinion that at the time Godman signed and...