Newcomb's ex'or v. Newcomb

• Decision Date: 30 October 1894
• Citation: 96 Ky. 120
• Parties: Newcomb's Ex'or v. Newcomb.
• Court: Kentucky Court of Appeals

96 Ky. 120

Newcomb's Ex'or v. Newcomb.

Court of Appeals of Kentucky.

October 30, 1894.

APPEAL FROM HENDERSON CIRCUIT COURT.

YEAMAN & LOCKETT FOR APPELLANT.

KNOTT & EDELEN OF COUNSEL ON SAME SIDE, AND ON PETITION FOR REHEARING.

JOHN YOUNG BROWN, S. B. & R. D. VANCE AND JAS. F. CLAY FOR APPELLEE.

JUDGE HAZELRIGG DELIVERED THE OPINION OF THE COURT.

The finding of the jury in the court below to the effect that a paper, purporting to be the will of E. B. Newcomb, deceased, was not his will, is sought to be set aside on this appeal by his widow and sole devisee, on the following grounds: First. That the opinions of non-experts against the sanity of the alleged testator were taken without a statement of facts upon which the opinions were based.

It is conceded that the witnesses thus permitted to express their opinions of the incompetency of Newcomb to make the will in contest, had opportunities, more or less ample, to form opinions of his mental condition through long acquaintance and association with him. But on the authority of the McDaniel Will Case, 2 J. J. M., 331, and of the case of Hunt's Heirs v. Hunt, &c., 3 B. M., 577, it is insisted that the correct rule and true doctrine is that "the opinions of witnesses, other than the subscribing witnesses, as to the competency of a testator, without stating facts on which they are predicated, are not evidence." We put the contention of counsel in the very language of the Hunt case, and yet it is evident that just what facts must be stated to entitle the witness to give his opinion is left undetermined by the court. Unquestionably the opinion of a non-expert, who has had no opportunity to form an opinion of the sanity or insanity of a testator from acquaintance, association, observation, or the like, should not be taken. We think the true rule, after a thorough research, was reached in Brown v. Commonwealth, 14 Bush, 398 (Hines, Judge), where it was held that, before admitting the opinion of a non-professional witness as to the sanity or insanity of the person of whom he is to speak, the court must be satisfied that the witness has had an opportunity, by association and observation, to form such an opinion, and when such opportunity is shown, the opinion is competent and its admissibility is not dependent on whether or not the witness is able to detail certain specific facts of themselves showing sanity or insanity. The ability of the witness to detail such facts may add very greatly to the weight of the opinion given, but they will not of necessity affect the question of the admissibility of the testimony.

What is sought is the precise mental condition of the subject, and when we come to compare the merit of the evidence given by the expert, which is admitted to be competent, who testifies upon a given hypothesis, often confusing and misleading, with the evidence of the neighbor and associate, who speaks from actual observation, however unsubstantial and indefinite his facts may appear, we are not prepared to give preference to the former; certainly not to the exclusion of the latter. (See also Wise v. Foote, 81 Ky., 10; Carlin v. Baird, 11 Ky. L. R., 932.)

Second. That this instruction was misleading to the jury, viz: "If, at the time said Newcomb executed said paper, he had the capacity to know his wife and children and his estate, and to dispose of the same in a rational manner, according to a fixed purpose on his part, then he was of sound mind according to law, and they will find said paper to be his will."

It is argued, and not without some force, that when told that the capacity of the testator must be such as would enable him to dispose of his estate in a rational manner, the jury might conclude that if, according to their opinions, the disposition was not made "in a rational manner," then they might find against the paper. When we remember, however, that on all sides it is admitted that the provisions of a will, when reasonable, provident and natural, are in themselves high evidences of testamentary capacity, and may be submitted to the jury for the purpose of sustaining the paper, we are forced to conclude that provisions of a contrary character may be relied on to show want of capacity.

Irrational, unreasonable and unnatural provisions in a will may be shown as elements of testamentary incapacity and mental imbecility. And this is all, on a critical analysis, that is suggested by the objectionable words in the instruction. The manner of the disposition was not to be...