Henning v. Stevenson

• Decision Date: 24 May 1904
• Citation: 118 Ky. 318,80 S.W. 1135
• Parties: HENNING et al. v. STEVENSON et al.
• Court: Kentucky Court of Appeals

80 S.W. 1135

118 Ky. 318

HENNING et al. v. STEVENSON et al.

Court of Appeals of Kentucky.

May 24, 1904

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

"To be officially reported."

Will contest by J. W. Henning and others, contestants, against Richard T. Stevenson and others. From a judgment sustaining the will, contestants appeal. Affirmed.

Pirtle Trabue, Doolan & Cox, William Lindsay, Oneal & Oneal, and Julius C. Klein, for appellants.

Helm Bruce & Helm, for appellees.

HOBSON J.

Appellees offered for probate in the Jefferson county court a paper purporting to be the will of Fannie Speed. Its validity was contested. The county court admitted the paper to probate. The contestants appealed to the Jefferson circuit court where the case was heard before a jury, who also found in favor of the will. Judgment having been entered on the verdict, the contestants appeal to this court.

Fannie Speed was the widow of Joshua F. Speed, who died in the year 1882, leaving an estate amounting to over $650,000. They had no children. Mr. Speed, by his will, after certain specific devises, gave one half of his estate to his relatives and the other half to his wife. She received, under the will of her husband, about $325,000. She made her will in January, 1897, and died in the summer of 1902. At the time of her death her estate amounted to over $500,000. Her husband was the partner of her brother, J. W. Henning, and her brother's sons managed her estate for her with rare fidelity and good judgment. Some weeks before the will was made, she sent and got some legal cap paper, and also got a former will she had made. After this on two afternoons she remained in her room, and wrote with her own hand, nobody being present or knowing what she had written, the paper in contest, placed it in an envelope, and delivered it to a lady who was living with her to keep as her will. The lady declined to keep it, and finally it was delivered to her nephew, Mr. Henning, who had it placed in a box in the vaults of the trust company, whence it was taken after her death, she having subsequently made some codicils to it that are not important. By her will, after a number of specific devises of no great value, she disposed of her entire estate. There was no question on the trial, under the evidence, but that the paper was wholly in the handwriting of the testatrix, and was executed and published as her will. Its validity was assailed on the ground of incapacity and undue influence.

The chief complaint made on the appeal is of the following instructions given by the court: "(1) The court instructs the jury that they should find the paper dated January 5, 1897, read in evidence and purporting to be the last will of Fanny Speed, and the four papers read in evidence as codicils thereto, to be the last will of Fanny Speed, unless they shall believe from the evidence that at the time she wrote the said papers, or wrote one or more of them, she was not of sound mind, or that she wrote one or more of them under the influence of some other person or persons. (2) But if she was not of sound mind when she wrote the said papers, or one or more of them, they should find the paper or papers written by her when she was not of sound mind not to be her last will. (3) If she wrote the said papers, or any part of either of them, under the undue influence of any other person or persons as defined in instruction No. 5, the jury should find the paper or papers, or the parts thereof written under such undue influence, not to be the last will of the said Fanny Speed." By instruction 4 the court defined mental capacity; by instruction 5 he defined undue influence; by instruction 6 he directed the jury as to the form of their verdict. These were all the instructions given.

The only instruction complained of is No. 1. This is complained of on the ground that the burden of proof as to capacity continues upon the propounders throughout the case. But in Milton v. Hunter, 13 Bush, 163, this court, in a well-considered opinion by Chief Justice Lindsay, condemned an instruction which placed the burden of proof as to testamentary capacity upon the propounders, and laid down the rule that when they have proved the due execution of a paper, not irrational in its provisions, nor inconsistent in its structure, language, or details with the sanity of the testator, the presumption of law makes out for them a prima facie case, and the burden of showing incapacity on the part of the testator is shifted to the contestants. This rule has since been followed in Flood v. Pragoff, 79 Ky. 611; Fee v. Taylor, 83 Ky. 259; Bramel v. Bramel, 101 Ky. 72, 39 S.W. 520; Howat v. Howat, 41 S.W. 771, 19 Ky. Law Rep. 756; King v. King, 42 S.W. 347, 19 Ky. Law Rep. 868; Boone v. Ritchie, 53 S.W. 518, 21 Ky. Law Rep. 864; Woodford v. Buckner, 63 S.W. 617, 23 Ky. Law Rep. 628; Dunaway v. Smoot, 67 S.W. 62, 23 Ky. Law Rep. 2291. The evidence as to the execution of the will by the testatrix, and as to its being wholly in her own handwriting, was uncontradicted. There being no conflict of evidence on these matters, the court did not err in not submitting them to the jury, and in assuming, in the instruction, that the testatrix had written the paper with her own hand.

But it is insisted that the court erred in not submitting to the jury whether the paper was consistent in its provisions and rational on its face. Our attention is called to the fact that the instruction approved in Bramel v. Bramel and Woodford v. Buckner, contained words submitting this question to the jury. But in the Bramel Case the instruction had been given on the trial, and the judgment of the circuit court was affirmed. In the Woodford Case the Bramel Case was simply followed. In both these cases the only question considered by the court was as to the burden of proof. The form of the instruction, in so far as it relates to the words referred to, was not considered, and there is nothing in either of these opinions to show that these words were deemed material. On the other hand, in Howat v. Howat and Boone v. Ritchie instructions were approved which were substantially the same as that complained of. It is a question for the court to determine when a prima facie case has been made out. The court must determine this question, in will cases as in others, for himself, and frame his instructions to the jury accordingly. When the contestants have shown the execution of a paper, rational in its provisions, they have made out a prima facie case; and, when the court comes to instruct the jury, the rule is that he should not instruct them as to the presumptions of law, but should simply so frame his instructions as to indicate the burden of proof, without expressly referring to it. Davis v. Paducah Railway Company, 68 S.W. 140, 24 Ky. Law Rep. 135. Under this rule the court must determine for itself on whom the burden of proof rests, and so indicate in his instructions. When he has done this in a will case, it is a question for the jury, under all the evidence, whether the testator was of sound mind at the time of the execution of the will. In determining this question they may consider all the evidence before them, including the will itself, which, when wholly written by the testator, is potent evidence of the condition of his mind at the time. The rule is that the...