Humphrey v. Neal

• Decision Date: 01 June 1923
• Citation: 251 S.W. 637,199 Ky. 498
• Parties: HUMPHREY ET AL. v. NEAL ET AL.
• Court: Kentucky Court of Appeals

251 S.W. 637

199 Ky. 498

HUMPHREY ET AL. v. NEAL ET AL.

Court of Appeals of Kentucky.

June 1, 1923

Appeal from Circuit Court, Trimble County.

Proceeding to contest a will by Robert E. Humphrey and another, opposed by George Neal and another. From a judgment sustaining the will, rendered after a directed verdict, the contestants appeal. Reversed.

Edwards Odgen & Peak, of Louisville, for appellants.

Eugene Mosley, of Bedford, Charles Carroll, of Louisville, Claude Terrell, of Bedford, and Clarence A. Call, of Indianapolis Ind., for appellees.

MOORMAN J.

William T. Humphrey, a resident of Trimble county, died in October 1920. Shortly thereafter a paper written by him, dated April 19, 1919, was probated as his will in the Trimble county court. Robert E. Humphrey, a brother, and Ophelia Coffin, a sister, of the decedent, appealed from the order of probate to the Trimble circuit court, contesting the validity of the paper on the ground that at the time it was executed William T. Humphrey did not possess testamentary capacity. At the conclusion of all the evidence on the trial in that court the jury under a peremptory instruction found the paper to be the last will of William T. Humphrey. On this appeal the only question is: Was the court justified under the evidence in directing the jury to return that verdict?

The decedent was 82 years of age at the time of his death. He was a bachelor, and had resided in Trimble county most of his life. His only near relatives were his brother and sister, appellants in this case. He owned the farm on which he resided, but the record does not show its value, nor what, if any, other property he owned. The brother and sister were quite old. Next to them the nearest relatives of the deceased were second cousins, who lived in other states, and whom he and appellants had not seen for many years. The paper purports to devise all the estate of the testator to his brother and sister, in equal parts, during their lives, and provides that, at the death of the survivor, the property shall be sold and the proceeds divided "equally between George Neal, Mary Agnes Rutherford, and Shelby Lynch."

George Neal had been brought up in the home of Robert E. Humphrey and had been treated as a foster son by the family. He had necessarily been associated with the decedent, and on the whole had been treated kindly by him. However, for a number of years before the paper in contest was executed he had resided in Indiana and had had little contact with his earlier associates. Mary Agnes Rutherford was a distant relative. She had lived in decedent's home for a few weeks at one time, and while there was kind and attentive to him. Shelby Lynch had grown up in the neighborhood, had done some work for Humphrey, and had suffered the misfortune of blindness. Appellants contend that these three persons had no claim on the decedent, and that the devise to them is an evidence of lack of testamentary capacity, in view of the fact that a part of the farm,...