Irvine v. Greenway
| Decision Date | 24 June 1927 |
| Citation | 220 Ky. 388 |
| Parties | Irvine v. Greenway, et al. |
| Court | United States State Supreme Court — District of Kentucky |
3. Appeal and Error. — Erroneous admission of evidence, where not prejudicial, does not warrant reversal of judgment.
4. Wills. — Rejecting evidence of comparative financial condition of contestant and legatee, offered to prove testatrix's want of mental capacity, in not knowing objects of her bounty, by omitting contestant, held not error, where legatee alone would have inherited in event of intestacy, though legatee and contestant were of same degree of kinship.
5. Wills. — Testimony of contestant that testatrix repeatedly told him farm belonged to his father and himself under her husband's will held inadmissible in will contest, in absence of any statement as to what testatrix, who had property during lifetime with power of disposition, intended to do under her own will.
6. Wills. — In will contest, where letter of testatrix had been read to jury, in which she complained of certain things said by person whom she made beneficiary, refusing to allow beneficiary to deny statement held not error, where statement in no way affected contestant.
7. Evidence. — In will contest, testimony of witness as to testamentary capacity held properly excluded, where witness was not shown to have had sufficient acquaintance with her to qualify on subject.
8. Evidence. — In will contest, evidence of witnesses that testatrix was childish held properly excluded, as mere conclusion.
9. Evidence. — Province of witness is to detail facts; drawing of conclusions being for jury.
10. Wills. — Exclusion of testimony of witness that on making certain settlement with him for services testatrix was excited held not prejudicial to contestant in will contest, where witness had previously made same statement to which no objection was interposed.
11. Trial. — In will contest refusing instruction that, if jury did not believe writing to be consistent in its provisions and rational on its face, they should not find it to be decedent's will, held properly refused, because calling jury's attention directly to provisions of will and its consistency; it being error to single out and give undue prominence to any portion of evidence.
12. Wills. — Instruction in will contest, permitting jury's consideration of testatrix's mental capacity as to particular part of will, under Ky. Stats., section 4859, held properly refused, where no claim of undue influence was asserted.
13. Wills. — Mental incapacity to execute will at time of composition of particular part does not avoid will, where testatrix on executing it possessed requisite capacity, thereby ratifying part formerly composed.
14. Wills. — Will should be admitted to probate, as against claim of want of testamentary capacity, unless testator at time of execution did not have sufficient mental capacity to enable him to know natural objects of his bounty and to dispose of it according to his own fixed purposes.
15. Trial. — In will contest, 9 or more jurors could make valid verdict though, if fewer number than 12 agreed, those agreeing were required to sign verdict.
16. Wills. — In will contest, statement of counsel as to effect of jury's verdict on other provisions of will held nonprejudicial, where contestant objected, and court instructed jury to disregard such statement.
17. Appeal and Error. — In will contest, contestant, who, knowing juror had copy of newspaper containing account of former disposition of issues in proponents' favor, failed to call matter to court's attention, or ask jury's discharge, could not complain thereof on appeal.
18. Trial. — Testimony of juror that another member of jury brought in newspaper containing account of former disposition of issues and argued therefrom as to verdict could not be considered to explain grounds of decision or impeach validity of finding.
19. Torts. — Proponents of will could not recover damages from contestant by virtue of loss through litigation, where contestant asserted claim to valuable property under will of testatrix's husband which contestant would have received if testatrix had died intestate.
20. Appeal and Error. — Court's authority on appeal extends merely to correction of errors preserved by record which are prejudicial to substantial rights of complaining parties, in view of Civil Code of Practice, sections 134, 338, 756; Court of Appeals having no authority to retry case.
Appeal from Madison Circuit Court.
JOHN NOLAND and BENTON & DAVIS for appellant.
GRANT E. LILLY and BURNHAM & GREENLEAF for appellees.
OPINION OF THE COURT BY DRURY, COMMISSIONER.Affirming.
From a judgment establishing a certain paper as the will of Elizabeth S. Irvine, the contestant, David Irvine, has prosecuted this appeal. On April 7, 1885, William M. Irvine died, and shortly thereafter a paper was probated as his will. The rights of David Irvine arise under the second clause of that instrument, in which we find the following:
In a previous clause of his will, William M. Irvine had devised all of his property to his wife, Elizabeth S. Irvine, and had further provided:
"In the event, however, that she, my wife, dies intestate and without making any disposition of my estate, then I provide that my estate shall be divided as follows."
William M. Irvine then proceeded to make a disposition of his property that would be effective in event his wife died intestate, and, among the other devises made by him, we find what we have copied above from section 2 of his will relative to David Irvine, who was then David Irvine White, but who has since, by proper legal proceedings, had his name changed to David Irvine, and he is so known in this record. Elizabeth S. Irvine lived for 35 years after the death of her husband. She died on November 25, 1920. On December 6, 1920, the paper in question was admitted to probate by the Madison county court as her will. A few days thereafter, David Irvine White, a nephew of Elizabeth S. Irvine, prosecuted an appeal to the Madison circuit court from the order probating the paper in question as the will of Elizabeth S. Irvine. On January 26, 1921, David Irvine White entered into a written contract or agreement with John W. Crooke, who had qualified in the Madison county court as the executor of Elizabeth S. Irvine under this paper. Pursuant to and as a result of that contract, the appeal of David Irvine White, contesting said paper, was dismissed on February 18, 1921, and immediately after that a suit was filed by the executor, Crooke, in which he sought to obtain a construction of three wills: First, a construction of the will of David Irvine, Sr.; second, that of his son-in-law, William M. Irvine; and third, a construction of the will of Elizabeth S. Irvine, who was a daughter of David Irvine, Sr., and the wife of W.M. Irvine, and whose will is the one here in question. An issue in that case arose between William Irvine Greenway, on one side, and David Irvine White and the latter's son David Irvine, upon the other. That case has reached this court twice. See Greenway v. White, 196 Ky. 745, 246 S.W. 137, 32 A.L.R. 1385, and White v. Greenway, 209 Ky. 368, 272 S.W. 920. After that case had been decided, the appellant here, David Irvine, as sole contestant, prosecuted a second appeal from the order of the Madison county court probating the paper in contest as the will of Elizabeth S. Irvine, and it might be of interest to narrate the various steps taken upon this second contest, but that would do no good, as it never progressed to the point of a trial, and was finally dismissed by David Irvine, the appellant here.
In the original contest of this will, begun in December, 1920, by David Irvine White, his son, the appellant here, David Irvine, had been named as an appellee and had been proceeded against in that contest (of 1920) as a nonresident. After dismissing the second will contest, the one which he had begun, David Irvine, on May 12, 1923, filed in the Madison circuit court a petition in equity under section 4861, Ky. Stats., which section is:
By this petition, David Irvine sought to impeach the order of February 18, 1921, by which the contest instituted by his father was dismissed and to...
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