Mossbarger v. Mossbarger's Adm'x

• Decision Date: 21 June 1929
• Citation: 230 Ky. 230,18 S.W.2d 997
• Parties: MOSSBARGER v. MOSSBARGER'S ADM'X.
• Court: Kentucky Court of Appeals

18 S.W.2d 997

230 Ky. 230

MOSSBARGER v. MOSSBARGER'S ADM'X.

Court of Appeals of Kentucky

June 21, 1929

Appeal from Circuit Court, Hardin County.

Proceedings for probate of will of Henry Mossbarger, deceased, by decedent's administratrix, contested by Griffin M Mossbarger. Judgment for proponent, and contestant appeals. Affirmed.

James &amp James and J. E. Wise, all of Elizabethtown, for appellant.

Layman & Layman and Faurest & Faurest, all of Elizabethtown, for appellee.

WILLIS J.

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 the 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 express his desires. He was not only able to read, but wrote the will in a clear and well-expressed form. His use of the title "Esquire" after his name in the introductory part of the will was insignificant.

It is argued that the wife had an opportunity to exercise undue influence over her husband from the time of their marriage in January until the will was written; that there is some evidence from the experts that Mr. Mossbarger was susceptible to influence, and that the resulting will justifies the inference that the sinister power was exerted. Undue influence is such overpowering of the testator as destroys free agency, and constrains action which would not otherwise be taken. If such sinister influence is exerted directly or indirectly upon the testator's mind, bringing about the execution of the purported will, the instrument is not regarded as the act or will of the testator. Undue influence is necessarily a wrongful influence that destroys liberty of action. Reasonable influence, acquired by kindness, good treatment, and affection, is not unfavorably regarded, and testamentary rewards to those having such influence are not interdicted. Seals v. Seals, 213 Ky. 779, 281 S.W 982. Many opinions may be found applying the principles stated to varying situations presented by the peculiar circumstances of the particular cases. Fry v. Jones, 95 Ky. 148, 24 S.W. 5, 15 Ky. Law Rep. 500, 44 Am. St. Rep. 206; Lischy v. Schrader, 104 Ky. 668, 47 S.W. 611, 20 Ky. Law Rep. 843; Johnson's Adm'r v. Johnson, 45 S.W. 456, 20 Ky. Law Rep. 138; Murphy's Ex'r v. Murphy, 146 Ky. 399, 142 S.W. 1018; Meuth's Ex'r v. Meuth, 157 Ky. 791, 164 S.W. 63; Holliday v. Holliday, 161 Ky. 501, 171 S.W. 156; Beard v. Beard, 173 Ky. 138, 190 S.W. 703, Ann. Cas. 1918C, 832; Sheeran v. Jarboe, 190 Ky. 843, 229 S.W. 111; McGee v. Brame, 176 Ky. 305, 195 S.W. 473; Barber's Exr v. Baldwin, 138 Ky. 710, 128 S.W. 1092. This court has distinctly held, however, that something more than opportunity to exercise undue influence must be...