Kevil v. Kevil
| Decision Date | 09 October 1866 |
| Citation | 65 Ky. 614 |
| Parties | Kevil, & c., v. Kevil, & c. |
| Court | Kentucky Court of Appeals |
1. In an action controverting the validity of a will, in the circuit court, the successful party may be entitled to a new trial on the ground of the discovery of new evidence, for the purpose of making the case stronger in the court of appeals.
2. Gross inequality, apparently unjust or unreasonable, is not alone sufficient to invalidate a will which otherwise would be unassailable; but apparent inequality or unreasonableness in a testamentary disposition is entitled, in proportion to its degree of flagrancy, to some auxiliary influence on the question of capacity, or fraud, or controlling influence and, unexplained and combined with other corroborating evidence, it may be entitled to great influence.
APPEAL FROM CALDWELL CIRCUIT COURT.
SIMPSON & SCOTT, For Appellants.
HARLAN & HARLAN, For Appellees.
Thomas Kevil, of Caldwell county, Kentucky, in June, 1855, when he was seventy-one years old, published as his will a testamentary document, whereby he disposed of his whole estate--worth about $50,000--unequally among his children, by two wives, giving to those of his first wife comparatively but little, and the residue to those of his then living wife much younger than himself, and to whom he devised the most of it during her life.
After probate in the county court, the document--recontested in the circuit court for the alleged incapacity of the testator and imputed control of his wife--the jury found a verdict against it, and the court thereupon adjudged that it was not his will, and overruled a motion for a new trial. And from that judgment both parties appealed; the unsuccessful party appealing because, as alleged, the verdict was not authorized by the evidence, and the successful party appealing because the court refused a new trial on the discovery of additional evidence against the will.
Admitting that--anomalous as such a procedure in such a case certainly is--the party succeeding on the issue might be entitled to a new trial for the purpose of making the case stronger in the appellate court, nevertheless, the discovered testimony in this case being only slightly cumulative, was of such a character as not to have sustained a verdict, which, without it, should be set aside as unauthorized by the evidence heard by the jury. Wherefore, we cannot grant a new trial to the appellants, who obtained a judgment in the circuit court.
But in our opinion, the circuit court erred in refusing a new trial to the other party.
Gross inequality, apparently unjust or unreasonable, is not alone sufficient to invalidate a will which otherwise would be unassailable. The testamentary power is of...
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