King v. King

• Decision Date: 29 September 1897
• Citation: 42 S.W. 347
• Parties: KING et al. v. KING et al.
• Court: Kentucky Court of Appeals

42 S.W. 347

KING et al. v. KING et al.

Court of Appeals of Kentucky.

September 29, 1897

Appeal from circuit court, Whitley county.

"Not to be officially reported."

Lucy A King and others presented the will of E. I. King for probate. From an order probating the will, Thomas King and others appeal. Affirmed.

R. D Hill, for appellants.

K. D Perkins and Tye & Sharp, for appellees.

PAYNTER J.

This controversy arose over an effort to have probated a paper purporting to be the will of the late E. I. King, of Whitley county. Certain of his heirs at law are contesting the will on the grounds (1) of the want of capacity of the testator to make a will; (2) that it was procured by undue influence. After the jury was sworn, and before any evidence was offered, the contestants announced that they would resist the probating of the will on the grounds we have stated. Thereupon the court ruled that he would require the propounders to introduce evidence to prove the execution of the will, and slight evidence as to mental capacity. This evidence was introduced, as the court required. The propounders then announced "Through." The contestants then introduced evidence in support of the defense which they had announced they would make. At the conclusion of such evidence the propounders introduced evidence in rebuttal. It is insisted by the appellants (contestants) that the court erred because such evidence should have been offered in chief. This court has in several cases decided that the burden is on the contestants to show incapacity, fraud, or undue influence; and, unless the paper presented is irrational or inconsistent, it is not necessary for the attesting witnesses to prove the capacity of the party executing it. Flood v. Pragoff, 79 Ky. 607; Milton v. Hunter, 13 Bush. 163; Hawkins v Grimes, 13 B. Mon. 257. In the recent case of Howat v. Howat's Ex'rs (Ky.) 41 S.W. 771, the same doctrine was enunciated. It has been decided by this court that the devisee and heirs at law are competent witnesses. When the propounders of the will have made the prima facie case as we have stated, the court should not require more of them in chief. Whatever testimony the propounders may offer after the contestants have rested is in rebuttal, hence it is not in violation of that provision of the Civil Code of Practice which prohibits a party from testifying in chief for himself after having introduced other evidence in chief. There is no inconsistency in the provision of the statute which gives the closing argument to the propounders and that provision of the Civil Code which gives the closing argument to the party having the burden of proof. The statute is a special provision relating to the proceedings to establish papers purporting to be wills. The...