Milton v. Hunter

• Decision Date: 12 April 1877
• Citation: 76 Ky. 163
• Parties: Milton, & c. v. Hunter, & c.
• Court: Kentucky Court of Appeals

76 Ky. 163

Milton, & c. v. Hunter, & c.

Court of Appeals of Kentucky.

April 12, 1877

APPEAL FROM BULLITT CIRCUIT COURT.

MUIR &amp WICKLIFFE FOR APPELLANTS.

1. The first evidence of capacity to make a will to be considered and that to which great weight should be given, is the will itself. (Reed's Will, 2 B. Mon. 80; McMeekin v McMeekin, 2 Bush, 80.)

2. As to what influences may induce or control the making of a will without invalidating it, see 4 Met. 174; and Broaddus v Broaddus, 10 Bush, 304.)

3. The action of the circuit court in admitting evidence as to the statements of one of the principal legatees, in reference to the capacity of the testator, made before the making of the will, and after the death of the testator, is sustained by one case only-- Atkins v. Sawyer, 1 Pick. 192. The better rule to the contrary is laid down and sustained in Phelps v. Hartwell, 1 Mass. 71; Lightner v. Wike, 4 S. & R. 203; Nusser v. Arnold, 13 S. & R. 323.

But the statements of the devisee are inadmissible in this case, because there are other devisees, and his statements, if any were made, can not be proven to prejudice their rights. ( Boyd v. Eby, 8 Watts, 66; Dotts v. Fetzer, 9 Barr. 88; Brown v. Moore, 6 Yerger, 272; Roberts v. Frawick, 13 Ala. 68; Blakey v. Blakey, 33 Ala. 611; 13 Ohio, N. S. 356.)

4. The deposition of the husband of one of the heirs-at-law of the testator, he and his wife not being parties to the record--having refused to join in the contest of the will--was competent in behalf of the propounders of the will.

5. When the propounders have made out the statutory case of the proper execution of the will, and that testator was of sound mind at the time of publication, the onus then shifted to the contestants, and it devolves on them to overcome the prima facie case by positive proof of incapacity. ( Hawkins v. Grimes, 13 B. Mon. 270; Brooks, & c. v. Barrett, 7 Pick. 94; James, & c. v. Langdon, 7 B. Mon. 198; Howard, & c. Coke, & c. 7 B. Mon. 658.)

The instructions given for appellees did not conform to the foregoing and following cases, as to undue influence, etc. (Kinleside v. Harrison, 2 Phillim, 551; McMahon v. Ryan, 20 Penn. 329; Jenckes v. Court of Probate, 2 R. I. 255; Batton v. Watson, 13 Ga. 63; Chandler v. Farris, 1 Harring. 454; 1 Harring. 464.)

This is a much stronger case in favor of the will than the Sechrest Case (4 Met. 172). See the cases therein cited. ( McDaniel's Will, 2 J. J. Mar. 331; Elliott's Will, 2 J. J. Mar. 340; Watson v. Watson, 2 B. Mon. 74; Reed's Will, 2 Ibid. 79; and 1 Jarman on Wills, 53, 54.)

CALDWELL & HARWOOD FOR APPELLEES.

1. Evidence proving statements made by the testator after the publication of the will is clearly competent upon the question of the capacity of the testator to make a will.

That the statements of the testator are competent upon any ground upon which the will may be attacked has always been the unvarying practice and ruling in this state. ( Shropshire, & c. v. Reno, 5 J. J. Mar 91; 7 Serg. & Rawle, 90.)

2. Evidence of the admissions of one of the legatees to the effect that he did not believe the testator competent to make a will was competent. Beall v. Cunningham (1 B. Mon. 399) is conclusive of this question.

3. The deposition of the husband of one of the heirs-at-law of the testator was incompetent, although he and his wife were not parties to the contest. (7 S. & R. 90; 3 Starkie on Ev., p. 1708; Dunn v. Lancaster, 4 Bush, 582.)

4. In petition for rehearing, as to the onus of contestants, they also cited Crispell v. Dubois, 4 Barbour (N. Y.), 395; Reddell v. Johnson's ex'r, 26 Gratt. 174; Wilson v. Moran, 3 Bradf. 172; Barry v. Buntlin, 1 Custar's Ecc. R. (Eng.) 637; Knox's Appeal, 26 Conn. 21; Comstock v. Hadlyme, 8 Conn. 254; Rogers v. Thomas, 1 B. Mon. 390; Rees's adm'r v. Stille, 38 Penn. 139.

OPINION

LINDSAY CHIEF JUSTICE:

A paper, purporting to be the last will and testament of Presley Milton, deceased, was admitted to probate by the county court of Nelson County. Certain of his heirs-at-law prosecuted an appeal from the order of probate to the circuit court, and then applied for and had the venue changed to the Bullitt Circuit, where a trial of the issue of will or no will was had. The trial resulted in a verdict and judgment against the validity of the paper, and the propounders have prosecuted an appeal to this court.

The principal issue is as to the competency of the deceased to dispose of his estate by last will and testament, and it is also insisted by the appellees that he was induced to execute the paper by and through the undue influence of the appellants and their friends.

It is not seriously disputed that the deceased was all his life a man of feeble intellectual development. He was uneducated, superstitious, and unusually ignorant. But he had some business capacity, and certainly did acquire, and, with the assistance of his relatives and friends, managed and preserved a considerable estate. Whether his stupidity amounted to imbecility is a question to be determined by a jury, as the facts developed by the record before us do not bring the case within the rule announced in Broaddus's devisees v. Broaddus's heirs (10 Bush, 299), that when there is no evidence to sustain or to assail a verdict this court will disregard the errors of the circuit court, and order the will to probate or reject it without further proceedings.

Appellants complain that the court below permitted evidence to go to the jury as to the statements of one of the devisees, John N. Milton, to the effect that the testator was mentally incapable of making a will. He is one of the principal devisees, and the statements, if made, were obviously against his interest. The decisions as to the admissibility of such testimony are conflicting. Mr. Greenleaf says: " Where several were both legatees and executors in the will, and also appellees in a question upon the probate of a will, the admission of one of them as to facts which took place at the time of making the will, showing that the testator was imposed upon, was held receivable." (1 Greenleaf's Evidence, sec. 174.) This conclusion is supported by the cases of Atkins v. Sanger (1 Pick, 192) and Jackson v. Vail (7 Wend, 125); but the rule has been repeatedly denied by the courts of Alabama and Pennsylvania.

This court, in considering this question in the case of Beall, & c. v. Cunningham (1 B. Monroe, 399), said: " But still the admission of one legatee or devisee, obviously against his interest, should be evidence against himself, and it would seem to be unreasonable that he should escape the effect of them altogether, merely because they might not be equally conclusive as to the interest of his co-legatees or devisees… . It would, in our opinion, be more consistent with principle and analogy to allow the admission of a fact by one of several legatees or devisees, evidently against his own interest, to be evidence, entitled to the effect not of an admission by all his associates in interest, but of the simple circumstance that a party interested admitted what he probably would not have done had he not believed it to be true. And this fact, though not entitled to the effect of an admission by all concerned in a common interest under the will, may, nevertheless, tend legitimately to a presumption against all of them (in a degree corresponding with all the circumstances ) that the thing admitted may be true. Such parties, like co-obligors, have a common interest in the same question, and must stand or fall together. They are thus consolidated by their testator, and by their own act in claiming under his will, and each of them can therefore refuse to testify against the will. "

The reason last given does not apply under our present system of practice; but as the question is one on which the authorities are in conflict in other states, and as the rule established in the case supra is not likely to prejudice the rights of parties claiming under a contested will, and as it has prevailed in this state for more than thirty-five years, we are of opinion the safer course is to follow rather than to set it aside.

The appellants also complain that the circuit court permitted statements made by the testator after the execution of the will, tending to show that he acted under undue influence, to be proved. The same character of evidence was received and considered in the case of Shropshire v. Reno (5 J. J. Mar. 91), and this case is fully supported by a case reported in 7 Serg. & Rawle, p. 90. Evidence of such statements is not admitted to show an intention or desire on the part of the testator to revoke the will, but to illustrate the condition of his mind, and his susceptibility to the influence of those upon whom he is compelled to rely for sympathy and assistance in his last extremity.

The evidence of the witness Powell was competent. The statements proved were made in the presence of the testator, and his failure to deny or explain them was evidence of their truth.

We can not say the court erred in refusing...