Howat v. Howat's Ex'r

• Decision Date: 23 June 1897
• Citation: 41 S.W. 771
• Parties: HOWAT et al. v. HOWAT'S EX'R et al.
• Court: Kentucky Court of Appeals

41 S.W. 771

HOWAT et al. v. HOWAT'S EX'R et al.

Court of Appeals of Kentucky.

June 23, 1897

Appeal from circuit court, Campbell county.

"Not to be officially reported."

Appeal by John Howat and others to Campbell circuit court from an order of the county court probating the will of George Howat. Verdict and judgment for the will, and contestants appeal. Affirmed.

Hawkins & Hawkins, for appellants.

Wright & Anderson, for appellees.

WHITE J.

This proceeding is a contest over the will of George Howat deceased. The will was probated in the county court of Campbell county, and from there appealed by the present appellants to the circuit court. A jury trial was had in the circuit court, and the verdict of the jury was that the paper in contest was the last will and testament of George Howat and judgment was entered accordingly. After appellants' motion for new trial had been overruled, they brought the case here for review.

The reasons for new trial assign as error the action of the court in giving and refusing instructions in the admission and exclusion of testimony, and misconduct of the successful attorney in his closing speech to the jury, as well as that the verdict is not sustained by the evidence, and is contrary to law. Additional grounds for new trial were filed, alleging newly-discovered evidence, which they could not discover by reasonable diligence in time for the trial. In support of this last ground filed appellants filed numerous affidavits stating what they would be able to prove by several witnesses. The appellees filed the affidavits of the witness whose evidence it is said the appellants had discovered, and this affidavit contradicts the statements of appellants as to what said witness would swear. On the misconduct of witnesses during the trial in disobeying the rule, the court issued its rule, and required said witnesses to respond as for contempt and on said motion said witnesses filed their own and other affidavits utterly and fully denying all acts charged. The court, after a full investigation, discharged the rule for contempt, and exonerated the witnesses.

On the trial, the propounders of the will (appellees here) introduced the attesting witnesses to the will, and proved its due execution, as required by the statute, and then announced to the court that they rested with their testimony. Thereupon the contestants (appellants) asked for a peremptory instruction to find the paper offered as not the will of John Howat, contending in support of this motion that the propounders had utterly failed to show mental capacity to make a will. The court declined to give said instruction, for the reason that, upon the proof of the proper execution of the will as required by the statute, the propounders had made out a prima facie case, and the law presumed mental capacity, and that when this was done the burden shifted to the contestants to show a lack of mental capacity. To this ruling contestants excepted, and this is assigned as error. In refusing the instruction the court did not err. Flood v. Pragoff, 79 Ky. 607; Milton v. Hunter, 13 Bush, 163. At the conclusion of all the testimony, the court, on motion of the propounders, instructed the jury as follows: "The jury...