Nugent v. Nugent's ex'R

• Decision Date: 12 January 1940
• Citation: 281 Ky. 263
• Parties: Nugent et al. v. Nugent's Ex'r et al.
• Court: United States State Supreme Court — District of Kentucky

281 Ky. 263

Nugent et al. v. Nugent's Ex'r et al.

Court of Appeals of Kentucky. Common Pleas Branch, Second Division.

January 12, 1940.

1. Wills. — A witness' statement that deceased's brother had stated, two days prior to deceased's death, that deceased would have to change his will and that deceased would have to do different about the stock, did not constitute a "scintilla of evidence," which means the slightest sign or trace of evidence, that brother exercised undue influence over deceased.

2. Wills. — Testimony showing that testator realized that he was approaching death, that he suffered greatly, that he was indisposed to conversation, and appeared to be disgusted in general with life, was insufficient to authorize submission to jury of issue of mental incapacity to make will.

3. Wills. — The testimony of priest, who talked with testator some days before testator's death, that testator did not have "full use of his mental faculties," was insufficient to authorize submission to jury of issue of mental incapacity to make will, since person not having full use of mental faculties may have ample mental capacity to make will.

4. Wills. — A person not having full use of his mental faculties may have ample mental capacity to make a will.

5. Evidence. — Ordinarily, purely expert testimony is accorded slight weight.

6. Evidence. — The testimony of physician who never attended nor saw testator during testator's illness, but who examined medical chart showing testator's condition during testator's hospitalization, that testator did not have mental capacity to make will, furnished

"scintilla of evidence," but did not require submission of issue of mental capacity to jury, where evidence was overwhelming that testator had mental capacity to make will.

7. Trial. — While every litigant is entitled to his day in court, he is not guaranteed more than one day or fair opportunity to present his case.

8. Trial. — In view of the repeal of the section of the Civil Code prohibiting the granting of more than two new trials because the verdict was not sustained by the evidence, and to bring the practice of Kentucky into harmony with the almost unanimous rule, the scintilla rule of evidence would be abolished where no property rights had been acquired in reliance on the rule and none would be endangered and the doctrine of stare decisis not being a barrier, in that the "rule was one of practice."

The word "scintilla" means the slightest particle or trace. The "scintilla rule" requires submission of case to jury if there is any evidence sustaining the plaintiff's case. A "scintilla of evidence" is something of substance and not mere vague, uncertain, or irrelevant matters, not carrying the quality of proof, or have fitness to induce conviction.

9. Courts. — Where not positively prohibited by public policy or other mandate, Court of Appeals should harmonize rules of practice with the almost universal rules existing in the other states by discarding those doctrines that will not stand the test of careful analysis, no matter of how long standing nor how many times adhered to.

10. Trial. — Where the evidence given at trial with all inferences that the jury could justifiably draw therefrom, is insufficient to support verdict for plaintiff, so that such a verdict if returned, must be set aside, trial court is not bound to submit the case to jury, but should direct verdict for defendant.

11. New trial. — A verdict will be set aside for insufficiency of evidence only if palpably or flagrantly against the evidence.

12. Courts. — The gauge for determining whether verdict is so palpably or flagrantly against the evidence as to be set aside is the decisions of the Court of Appeals in which such ground for reversal was raised and discussed.

Appeal from Jefferson Circuit Court.

W.S. Heidenberg for appellants.

Gordon, Laurent, Ogden & Galphin and Squire R. Ogden for appellees.

Before William H. Field, Judge.

OPINION OF THE COURT BY JUDGE FULTON.

Affirming.

The appellants, Elizabeth N. Nugent and Marian M. Nugent, contested the will of their uncle, Edward B. Nugent, basing their right to appeal on a former will dated in 1928, devising his entire estate to them. At the conclusion of all the evidence the trial court directed a verdict upholding the will and from the judgment entered on the verdict this appeal is prosecuted.

The testator was one of five brothers, Robert, Thomas, William, Richard and Edward B., two of whom, Thomas and William, survived the testator. Richard died in 1915 after being engaged with his brothers in the sand business under the firm name of Nugent Sand Co., and the appellants are his children. Edward, the testator, promised Richard that he would care for his children and this promise was faithfully kept. The relation between them was almost that of father and children and he lived for years with them in their home and the home of their mother, Mrs. Florence Nugent. The appellants were educated by Edward in New York and in recent years have made their home there but the separation did not diminish the devotion between them and their uncle.

Until the year 1931, Will, Thomas and Robert owned the stock of the sand company and early in that year Robert gave his one-third of the stock (167 shares) to Edward. In May of the same year Robert died leaving a will in which he ratified and confirmed his gift of the stock to Edward. Thereafter Edward, Will and Thomas conducted the business of the sand company until difficulties and litigation arose between Will on the one side and Thomas and Edward on the other, the feeling between Will and Edward being particularly bitter. Will had been president of the company but as a result of the disagreement he was forced out and Thomas was elected president. Edward remained a salaried officer until his death.

In 1932, Edward transferred his stock to Thomas, except three shares to qualify him to remain a director. During this time Edward was also engaged in the real estate business, but in 1933 became a bankrupt. (Reading between the lines, it is probable that the real purpose behind the will contest is to clear the way for an action against Thomas to set aside the transfer of the stock to him by Edward, since Edward's estate, unless this stock were considered an asset, amounted to almost nothing.)

In January, 1935, Edward's health had failed to such an extent that he practically ceased work and devoted himself to efforts to recuperate. These efforts were fruitless and about the last of May he was admitted to St. Joseph's Infirmary where he remained until his death on July 10, as a result of cancer of the spinal column. He was confined to his bed during all this time and for some weeks prior to his death opiates, mostly codeine and morphine, were administered to alleviate his suffering.

The principal question to be determined on this appeal is whether there was sufficient evidence of the testator's mental incapacity to require a submission of the case to the jury. While some mention is made in the brief of undue influence, the only testimony referred to in that connection is that of Mrs. Florence Nugent, mother of appellants, as to a statement made by Thomas on the afternoon of July 8th that "Ed will have to change that will — he will have to do different about that stock." This isolated statement, if made, unaccompanied by any facts or circumstances showing even a reasonable opportunity on Thomas' part to exercise undue influence over the testator, we do not regard as constituting a scintilla of evidence, even within the original and strict meaning of the scintilla rule — that is, we do not consider it as the slightest sign or trace of evidence that undue influence was actually exercised by Thomas over the testator.

To sustain their contention of the testator's mental incapacity, five witnesses were introduced by the appellants. Elizabeth, one of the appellants, Mrs. Florence Nugent, their mother, and Mrs. Martha Nevils, expressed opinion as to the testator's lack of capacity but a careful examination of their entire testimony discloses that their non-expert opinions were not supported by any facts or circumstances tending to confirm their opinions. Not one fact related by them tends to establish lack of capacity — such facts as they related showed only that the testator realized that he was approaching death, that he suffered greatly, that he was indisposed to conversation and appeared to be disgusted in general with the remnant of life he realized remained to him. Testimony of this character has often been held insufficient to authorize a submission of the case to the jury. See Godman et al. v. Aulick et al., 261 Ky. 268, 87 S.W. (2d) 612, and the many authorities therein cited.

Father Aloysius, a Catholic priest, who talked with the testator some days before his death, expressed the opinion that he did not have "full use of his mental faculties." Here, again, was non-expert opinion testimony open to the condemnation pointed out above and, even were this not so, it is apparent that even if the testator did not have full use of his mental faculties, he might well have had ample mental capacity to make a will. We entertain no doubts as to the insufficiency of the evidence furnished by the above named witness to require a submission to the jury under doctrine announced in Godman v. Aulick, supra, and other cases therein referred to.

We come to a more difficult question, however, in considering the testimony of Dr. Leo Block, a physician introduced by the appellants. Dr. Block was not an attending physician and never saw the testator during his illness. He must therefore be considered an expert witness, yet he was not testifying as does the usual expert to whom a hypothetical question is propounded. By agreement, the usual medical chart kept by professional nurses was introduced in evidence, showing the testator's condition at frequent and regular intervals...