Palmer, Executor v. Smith

• Decision Date: 13 October 1925
• Citation: 211 Ky. 105
• Parties: Palmer, Executor of Casper Smith, et al. v. Smith, et al.
• Court: United States State Supreme Court — District of Kentucky

211 Ky. 105

Palmer, Executor of Casper Smith, et al. v. Smith, et al.

Court of Appeals of Kentucky.

Decided October 13, 1925.

1. Wills — Testator's Children Properly Allowed to Testify as to His Statements and Actions on Issue of Testamentary Capacity. — In will contest, court properly allowed all of testator's children to testify as to his statements to them and as to his actions in their presence on issue of testamentary capacity, notwithstanding Civil Code of Practice, section 606.

2. Wills — All Facts and Circumstances Must be Taken Into Consideration in Determining Issue of Undue Influence. — In determining question of undue influence in execution of a will, all facts and circumstances must be taken into consideration.

3. Wills — Question of Undue Influence in Will Contest Held for Jury. — In will contest, question of undue influence held for jury.

4. Wills — Question of Undue Influence is for Jury, if there is Any Evidence Thereof. — If there is any evidence of undue influence in will contest, question is for jury.

5. Wills — Verdict Against Testamentary Capacity Not Palpably Against Evidence. — Verdict finding testamentary incapacity held not palpably against evidence.

6. Wills — Verdict for or Against Will Not Disturbed, Unless Flagrantly Against Weight of Evidence. — In view of Ky. Stats., section 4850, verdict for or against a will should not be disturbed on appeal, unless it is flagrantly against the evidence.

Appeal from McCracken Circuit Court.

WHEELER & HUGHES and JOHN G. LOVETT for appellants.

REED & BURNS, C.C. GRASSHAM and L.B. ALEXANDER for appellees.

OPINION OF THE COURT BY COMMISSIONER HOBSON.

Affirming.

Casper Smith died a resident of McCracken county in the spring of 1922, the owner of 314 acres of land of value between sixty and one hundred dollars an acre and about $10,000.00 in personalty. He left surviving him eight children. After his death a paper dated August 18, 1920, was produced in the county court and probated as his will. By this will he left all of his property to his two youngest children who resided with him and a son who resided about half a mile from him. His other five children lived in Calloway county about twenty-five miles from him. He had lived in Calloway county for many years but about twenty years before his death had moved to McCracken. The five children who took nothing under the will appealed to the circuit court from the order of the county court probating it. The case was tried before a jury who found the paper not to be his will. The propounders appeal.

The deceased was eighty-two years old at his death and a little over eighty when he made his will. His two youngest children had lived with him for many years. His wife had died three or four years before. He was on good terms with all of his children. They had all lived with him until they married and had worked on the farm helping him to accumulate what he had. It does not appear that he had made advances to any of them.

The court allowed all of the children to testify as to statements of their father to them and as to his actions in their presence. It is earnestly insisted that this was improper under section 606 of the Civil Code. But the circuit court correctly followed the rule laid down by this court in a long line of cases, beginning with Milton v. Hunter, 13 Bush 163; Cave v. Cave, 13 Bush 454; Flood v. Pragoff, 79 Ky. 612; Phillips v. Phillips, 81 Ky. 328; Porschet v. Porschet, 82 Ky. 93; Williams v. Williams, 90 Ky. 28; Caddell v. Caddell, 175 Ky. 505. In Equitable Life Assurance Society v. Bailey it was held that the beneficiary in a policy could not tell what the deceased insured said or did in an action against the insurer. But no question as to the competency of the heirs and devisees in a will case was raised there. In the subsequent case of Combs v. Roarks, 206 Ky. 455, it was held that the heirs of a decedent could not testify against another heir in a suit to recover certain certificates as to what the decedent said and did. But in concluding the discussion in that case the court said:

"Under our decisions a personal representative who has no pecuniary interest in the result of the trial may testify in behalf of the estate, and in will contests all parties may testify as to the testator's mental condition. This ruling is so well established it will not be disturbed, but it will not be extended."

It is also insisted that there was no evidence of undue influence and that the court erred in submitting this question...