Mossbarger v. Mossbarger's Adm'X

• Decision Date: 21 June 1929
• Citation: 230 Ky. 230
• Parties: Mossbarger v. Mossbarger's Administratrix.
• Court: United States State Supreme Court — District of Kentucky

Page 230

230 Ky. 230

Mossbarger v. Mossbarger's Administratrix.

Court of Appeals of Kentucky.

Decided June 21, 1929.

1. Wills. — An unnatural, unreasonable, and unjust disposition of testator's estate affords some evidence of testamentary incapacity, and, in connection with other circumstances, may be sufficient to take case to jury, but rule has no application, where substantial provision is made by will for child, and remainder of estate is devised to surviving wife.

2. Wills. — It is not uncommon, unreasonable, or unnatural for husband to devise all of his property to his wife.

3. Wills. — Evidence that testator devised only one-twelfth of $60,000 estate to son, and remainder to third wife, whom he married month before will was executed, and only few months before death, did not show will was unnatural and unequal as matter of law.

4. Wills. — In will contest, if there was any evidence from which jury could infer existence of undue influence in procurement or making of will, court should have instructed on issue of undue influence.

5. Wills. — Where will gave one-twelfth of $60,000 estate to son, and remainder to third wife, married month before executing will, and only few months before testator's death, and provisions were not at variance with declared intention of testator, and no importunity by beneficiary was shown, and there was no denial of opportunity to communicate with testator, and evidence showed will was deliberately made, and that son by testator's first wife had not lived with father, but remained distant from him, there was no ground for submitting issue of undue influence to jury in will contest.

6. Wills. — "Undue influence" is such overpowering of testator as destroys free agency and constrains action which would not otherwise be taken, and, if such influence is exerted directly or indirectly on testator's mind, instrument is not regarded as act or will of testator.

7. Wills. — Reasonable influence, acquired by kindness, good treatment, and affection, is not unfavorably regarded, and testamentary rewards to those having such influence are not interdicted.

8. Wills. — If will takes care of persons constituting natural objects of testator's bounty, and there is no proof of actual exertion of undue influence, mere opportunity afforded wife, even when coupled with weakened condition of testator by reason of impaired health, does not tend to prove that will was production of inhibited influence.

9. New Trial. — Evidence that juror expressed himself as biased in favor of proponent of will in advance of trial, which was denied by juror, and that another juror expressed willingness to serve on jury, and was summoned by deputy sheriff, who was his relative,

and that another juror sought shelter in proponent's garage during rainstorm, after refusing to go in to proponent's house, did not show such misconduct by jury as to warrant new trial.

Appeal from Hardin Circuit Court.

JAMES & JAMES and J.E. WISE for appellant.

LAYMAN & LAYMAN and FAUREST & FAUREST for appellee.

OPINION OF THE COURT BY JUDGE WILLIS.

Affirming.

Henry Mossbarger died August 27, 1927, and thereafter an instrument of writing purporting to be his holographic will was admitted to probate. It devised to testator's son, Griffin W. Mossbarger, the sum of $5,000 and the balance of the estate to his wife, Agnes Mossbarger. The son prosecuted an appeal to the Hardin circuit court, contesting the will on the ground of testamentary incapacity and undue influence. The case was submitted to the jury on the issue of testamentary capacity alone. The jury found a verdict in favor of the will, and the contestant has appealed.

Contestant's complaint in this court is that a peremptory instruction to find against the will was refused; that the court did not submit to the jury the issue of undue influence; and that the court refused a new trial requested because of misconduct upon the part of two jurors that sat in the trial of the case.

1. It is said that the estate of Mossbarger amounted to over $60,000, of which he gave only one-twelfth to his son, and the remainder to his third wife, whom he had married only a month before the will was executed, and only a few months before his death. It is insisted that these facts made the will unnatural and unequal, and placed upon the propounders the burden of proving some reasonable explanation of the inequality, and, since that burden was not met, the will should have been peremptorily rejected. The argument proceeds upon a misapprehension of the rule and the facts of this case. The rule is that an unnatural, unreasonable, and unjust disposition of the testator's estate affords some evidence of testamentary incapacity, and, in connection with other circumstances, may be sufficient to take a case to the jury, Helm's Guardian v. Neathery, 226 Ky. 42, 10 S.W. (2d) 474; Mullins v. Mullins, 229 Ky. 103, 16 S.W. (2d) 788, but that rule has no application where substantial provision is made by the will for a child, and the remainder of the estate is devised to the surviving wife. Indeed, it is not uncommon, unreasonable, or unnatural for a husband to devise all of his property to his wife. Creech v. Creech, 208 Ky. 845, 272 S.W. 36; Seals v. Seals, 213 Ky. 779, 281 S.W. 982. It follows that there is no merit in the contention that the court should have directed a verdict against the will.

2. The next insistence is that the court committed error in refusing to instruct the jury, as asked by appellant, upon the issue of undue influence. The scintilla rule applies in will contests as in other civil cases (Walls v. Walls, 99 S.W. 969, 30 Ky. Law Rep. 948; Holliday v. Holliday, 161 Ky. 500, 171 S.W. 156), and, if there was any evidence from which the jury could infer the existence of undue influence in the procurement or making of the will, the court should have instructed thereon. There was no direct evidence of undue influence. The will was dated February 25, 1926, and was written by the testator shortly after his last marriage, which occurred in January, 1926. It was presented to the cashier of a bank in which Mr. Mossbarger was a director in May, 1926, with a request that he attest it as a witness. The will was then left at the bank. Its provisions were not at variance with any fixed or declared intention of the testator. It did not divert the estate from the two persons who would have shared in it but for the will, although the division between them was different than would have been made under the statute of descent and distribution. No importunity by the beneficiary is shown. There was no denial of opportunity for the other members of the family to communicate or associate with the testator. The will was made deliberately while the testator was able to go about and attend to his business. It was not a deathbed devise. The testator had ample opportunity to reconsider and revoke the will if it did not...