Kirkpatrick v. Jenkins' ex'Rs.

• Decision Date: 25 January 1896
• Citation: 33 S.W. 819
• Parties: KIRKPATRICK et ux. v. JENKINS' EX'RS.
• Court: Tennessee Supreme Court

33 S.W. 819

KIRKPATRICK et ux. v. JENKINS' EX'RS.

Supreme Court of Tennessee.

January 25, 1896.

Appeal from circuit court, Davidson county; J. W. Bonner, Judge.

Proceeding by W. H. Kirkpatrick and wife against the executors of Osman Jenkins, deceased, to contest the validity of decedent's will. There was a judgment for proponents, and contestants appeal. Reversed.

A. G. Goodlett, W. G. Brien, and A. J. Caldwell, for appellants. Pitts & Meeks and Stokes & Stokes, for appellees.

CALDWELL, J.

The record in this case presents a contest over a paper writing alleged to be the last will and testament of Samuel Jenkins, who died in 1888, leaving six children, three sons and three daughters. The alleged will gives all of the alleged testator's large estate to his three sons and their children, without so much as mentioning the names or the existence of his daughters, or any of them. One of those daughters, Mattie B., and her husband, W. H. Kirkpatrick, deny the validity of that paper, and say that it is the result of undue influence, and that Samuel Jenkins did not have sufficient mental capacity to make a will. Verdict and judgment were for the proponents, and the contestants have appealed, and assigned errors.

1. The assignment that the verdict is not supported by a "preponderance of testimony" is not well made. It is bad because it fails to present any question that can be considered by this court. No rule of practice is more familiar and better settled than that the verdict of a jury in a civil case is conclusive upon this court if there is any evidence to sustain it. Railway Co. v. Mahoney, 89 Tenn. 312, 15 S. W. 652; Eller v. Richardson, 89 Tenn. 576, 15 S. W. 650; Insurance Co. v. Norment, 91 Tenn. 1, 18 S. W. 395; Sparta v. Lewis, 91 Tenn. 370, 23 S. W. 182; Peery v. Peery, 94 Tenn. 329, 29 S. W. 1; Scruggs v. Heiskell, 95 Tenn. ___, 32 S. W. 386. It follows from that rule that issues of fact passed upon by a jury in a civil case will not be considered here, unless the assignment states that there is no evidence to sustain the verdict. Railroad v. Kenley, 92 Tenn. 208, 21 S. W. 326; Poole v. City of Jackson, 93 Tenn. 62, 23 S. W. 57.

2. Samuel Jenkins had been a partial paralytic for some years before his death. During these years he was confined to his room, and a large portion of the time to his bed. There is much testimony tending to show that, while so confined, he often spoke of all his children and the disposition to be made of his property after his death; some of his declarations indicating a desire for equality among them, others being favorable to his daughters and unfavorable to his sons, and still others being favorable to his sons and unfavorable to his daughters. As already stated, the paper offered for probate as his last will and testament gives his daughters nothing, but makes the sons and their children the sole and exclusive legatees and devisees. It consists of what purports to be an original will, dated in 1877, before he was stricken with paralysis, and two codicils, dated in 1882 and 1885, respectively, both being after he became paralyzed. The trial judge rightly charged the jury that "if the will of 1877 was freely and voluntarily made by the testator, and at a time when he was of sound mind, no verbal declaration of the testator made after his attack of paralysis as to his intention or wish in regard to his daughters can operate to revoke his will or impair its validity." Obviously, a valid written will cannot be revoked or impaired by a mere verbal declaration of the testator. Mill & V. Code, § 3008; Allen v. Huff, 1 Yerg. 404; Marr v. Marr, 2 Head, 303; Allen v. Jeter, 6 Lea, 674; Pritch. Wills & Adm'rs, § 245.

3. Another part of the instruction to the jury is as follows: "Now, as to the alleged subsequent declarations of the testator, the court charges you that such declarations cannot be looked to, to establish the exercise of undue influence; but, if the exercise of undue influence be established by other means, you may then look to such declarations in order to determine his mental condition at the time of making the will, and the effect of such undue influence, if actually exercised, upon his action." There is no error in this direction. Though the cases are not harmonious, we think the great weight of authority and of reason is to the effect that subsequent declarations of an alleged testator may be considered by the jury upon an issue of mental incapacity, but that they cannot be considered upon an issue of undue influence, unless there be independent proof indicating the presence of undue influence, and then only to show a condition of mind susceptible to such influence and the effect thereof upon the testamentary act. Jackson v. Kniffen, 2 Johns. 31; Waterman v. Whitney, 11 N. Y. 157; Boylon v. Meeker, 28 N. J. Law, 274; Redf. Lead. Cas. Wills, 487; Shailer v. Bumstead, 99 Mass. 112, Redf. Lead. Cas. Wills, 397; Thompson v. Ish, 99 Mo. 160, 12 S. W. 510; In re Hess' Will, 48 Minn. 504, 51 N. W. 614; Id., 31 Am. St. Rep. 665, and note 690; Peery v. Peery, 94 Tenn. 328, 29 S. W. 1; 1 Redf. Wills (4th Ed.) 548, 9556, 9557; Pritch. Wills & Adm'rs, § 147; 27 Am. & Eng. Enc. Law, 505, 506.

4. The trial judge further said to the jury: "It is competent for the jury to look to any declaration of the testator in regard to the plaintiff Mrs. Kirkpatrick as to whether she was his...