McDonald's Ex'rs v. McDonald

• Citation: 120 Ky. 211,85 S.W. 1084
• Parties: McDONALD'S EX'RS et al. v. McDONALD et al.
• Decision Date: 25 March 1905
• Court: Kentucky Court of Appeals

85 S.W. 1084

120 Ky. 211

McDONALD'S EX'RS et al. v. McDONALD et al.

Court of Appeals of Kentucky.

March 25, 1905

Appeal from Circuit Court, Woodford County.

"To be officially reported."

Application for probate of the will of John McDonald, deceased, to which Joe McDonald and others filed objections. From a judgment denying probate, the executors and certain others appeal. Affirmed.

W. O Davis and Field McLeod, for appellant.

Harry A. Schoberth, guardian ad litem for infant appellants. D. T Edwards and T. L. Edelen, for appellees.

PAYNTER J.

This appeal result from a contest over the will of John McDonald. He left six children--three sons and three daughters--and the children of Mrs. Davis, a deceased daughter. His will provides for the distribution of his estate into seven parts. Each of his children takes one part, and the children of the deceased daughter one part. The children were not given fee-simple titles to the interest devised to them, but only a life estate. They were given no more freedom in the use of the life estates than that afforded by law. Some of those taking life estates had children, and some did not have; and if any died without children, the parts devised went back to the estate. A trial resulted in a verdict for the contestants. A reversal is asked upon the following grounds (1) That there was no evidence tending to show a want of testamentary capacity; (2) that the verdict of the jury was flagrantly against the weight of the evidence; (3) that the instruction given was erroneous and misleading.

The testimony is voluminous, and we will therefore only state in brief some of the evidence introduced by the contestants which tended to show a lack of testamentary capacity: The testator accumulated a large estate. Early in life he developed a great desire to make and save money. He was grasping and miserly, and evidently cared more for money than he did for his family. If the testimony of the contestants is to be believed, he had no genuine affection for his family and not the proper conception of his duty to them. There is evidence tending to show that he did not want his wife and children to have any of his estate--as he expressed it, he did not want them to have a "damn dollar"; that he would like to leave it in debt, so that it would take the rents of the land 30 or 40 years to pay it; that, if he knew the day he was going to die, he would buy land so it would take that period of time for the rents to pay for it; that he wanted to leave it in such a way that the children would have to work like dogs to get a living out of it. While he seemed to express a pride in the good looks of one of his daughters, yet he only allowed her $70 to clothe her and to pay the other expenses incident to her social position. His daughter Mrs. Davis married contrary to his wishes. She lived away from home. Sometimes she would return home with her children, and he would tell her to take her children out of his sight and return...