Hagedorn v. Scott

• Decision Date: 19 March 1929
• Citation: 228 Ky. 582
• Parties: Hagedorn et al. v. Scott et al.
• Court: United States State Supreme Court — District of Kentucky

Page 582

228 Ky. 582

Hagedorn et al. v. Scott et al.

Court of Appeals of Kentucky.

Decided March 19, 1929.

1. Wills. — In will contest, evidence held sufficient to take question of testator's mental capacity to jury and sustains verdict of contestants.

2. Appeal and Error. — Facts in evidence may not be taken apart and weighed separately, but resultant strength of whole may be considered by jury and must be taken into account by Court of Appeals in determining sufficiency of evidence to sustain verdict.

3. Wills. — Mere inequality or discrimination among relatives equally deserving is not sufficient ground for striking down will, but may afford adequate basis for verdict against it when coupled with other evidence indicating lack of some essential elements of testamentary capacity.

4. Wills. — The issue of testamentary capacity is one of fact, which must be tried by the jury, when the evidence is contradictory.

5. Appeal and Error. — Any doubts of Court of Appeals as to sufficiency of evidence to sustain verdict for will contestants on ground of testamentary incapacity are resolved in favor of upholding verdict by concurrence of judge, who saw witnesses, heard evidence, and approved result by denying motion for new trial.

6. Wills. — The verdict of a properly instructed jury in a will case, as well as in any other civil case, will not be overturned, when not flagrantly and palpably against the evidence, under Ky. Stats., sec. 4850.

Appeal from Woodford Circuit Court.

FIELD McLEOD and A.B. CHANDLER for appellants.

H.A. SCHOBERTH and WILL D. JESSE for appellees.

OPINION OF THE COURT BY JUDGE WILLIS.

Affirming.

This record presents the history of a will contest which terminated in a rejection of the will by the verdict of a properly instructed jury. The result is challenged by the propounders of the will on the ground that the evidence was insufficient to carry the case to the jury, and inadequate to sustain its verdict. The sole issue at the trial was the testamentary capacity of Ally Mountjoy, and the contentions on this appeal require an examination of the evidence adduced, which must be tested by the rules governing the subject announced and applied by the opinions of this court in kindred cases.

The parties are agreed that, in order to make a valid will, the testator must possess mind and memory sufficient to know the natural objects of his bounty, to appreciate his obligations to them, to know the nature, extent, and relative value of his estate, to take a rational survey thereof, and to dispose of it according to a fixed purpose of his own. Gay v. Gay, 183 Ky. 241, 209 S.W. 11; Langford's Ex'r v. Miles, 189 Ky. 523, 225 S.W. 246; Cecil v. Anheir, 176 Ky. 198, 195 S.W. 837; Williams v. Davis, 192 Ky. 433, 233 S.W. 886; Broyles v. Able, Jr., 208 Ky. 672, 271 S.W. 1040.

They are likewise in accord that the mere opinions of nonexpert witnesses are insufficient to constitute a scintilla of evidence of incapacity, but such opinions, when supported by facts and circumstances which afford substantial basis upon which to rest them, are adequate to sustain a verdict rejecting a will on that ground. Thompson v. Jordon, 222 Ky. 788, 2 S.W. (2d) 640; Young v. Toliver, 214 Ky. 773, 284 S.W. 389; Frazie v. Frazie, 186 Ky. 613, 217 S.W. 668; Schrodt v. Schrodt, 181 Ky. 174, 203 S.W. 1051; Hildredth v. Hildredth, 153 Ky. 603, 156 S.W. 144.

But they disagree radically in their respective interpretations of the effect of the evidence. The appellant contends that it was the will, and not the capacity of the testator, upon which the jury passed the condemnatory judgment, and that the verdict rests solely upon the opinions of untutored laymen, unsupported by any facts or circumstances of probative value. On the other hand, the appellees, with equal certitude, insist that the opinions of witnesses to the effect that testator did not possess the requisite capacity to make a will are amply supported by substantial facts which are shown to buttress the opinions that the witnesses entertained and expressed. We are thus brought to a consideration of the facts appearing in the record.

Ally Mountjoy was a bachelor, and died at the age of 54 years. He was survived by his two sisters and by the two children of a deceased younger brother. His relations with his family were always friendly, and, so far as appears in the record, he entertained equal affection for all of them. His property consisted of real estate of the value of about $6,000, all of which had come to him by inheritance from his mother, or had been acquired by him through reinvestments of money derived by descent. By the will in contest, he devised all of his property to one sister, Mrs. Hagedorn. No provision was made for the other sister, or for his niece, who was 15, or for his nephew, who was 12, years old. The will was made September 24, 1926, and Mountjoy died on January 11, 1927.

Testator had made his home for nearly seven years with Mrs. Hagedorn, who lived in a house in Versailles belonging to her brother. He paid no board, but allowed her to retain the rents collected by her for the upstairs apartment and for other rooms not used by the family. Before removal to Versailles, he had lived with his other sister for over seven years and helped pay the living expenses. He had a paralytic stroke in 1914, became helpless, and Mrs. Scott waited upon him. He was unable to control his natural functions, and the burden of caring for him was not only exacting but repulsive. After the use of his arms returned, he would jerk the rubber bed pan away and soil the bedding. He had been afflicted with syphilis, and no one could be employed to do his washing. Mrs. Scott had to do that, and she manifested praiseworthy devotion and loyalty to her afflicted and helpless brother. His obligation to her was very great, and, in view of his expressions of appreciation on one occasion, it is very difficult to reconcile his action in disinheriting her thereafter, especially when his whole property was ancestral. He had fallen from a horse when about 14 years old, which had affected his mind. He had a blood clot on the brain, and was delirious, and had to be quieted with opiates. Two severe strokes of paralysis rendered him practically helpless, and, after his partial recovery, he went about in a wheel chair for several years. His memory was not good. He had a delusion that a living aunt was dead, and would not listen to a letter that had been received from her. He would cry hysterically, and his nerves were deranged, making him shaky and flighty. There was testimony that he did not recognize persons well known to him, and on some occasions he would appear friendly with...