Phillips' ex'R v. Phillips' Adm'R.

• Decision Date: 11 October 1883
• Citation: 81 Ky. 328
• Parties: Phillips' ex'r v. Phillips' adm'r.
• Court: Kentucky Court of Appeals

81 Ky. 328

Phillips' ex'r v. Phillips' adm'r.

Court of Appeals of Kentucky.

October 11, 1883.

APPEAL FROM LINCOLN COMMON PLEAS COURT.

RUSSELL & AVERITT, WELCH & SAUFLEY, HILL & ALCORN, AND WM. LINDSAY FOR APPELLANT.

ROUNTREE & LISLE, DURHAM & JACOBS, AND C. S. HILL FOR APPELLEE.

JUDGE HINES DELIVERED THE OPINION OF THE COURT.

This is a contest as to which of two papers is the true and last will of D. M. Phillips. The paper purporting to have been executed in 1869 gives the property to the nominated executor, J. G. Phillips, in trust for the son of D. M. Phillips, and in case of his death, to certain charitable uses. The other paper, executed after the death of the testator's son in 1877, gives the estate to B. H. Ray and Ben. Doom, nephews of the testator, and nearest of kin, to whom the estate would have passed in case of intestacy. The J. G. Phillips, the nominated executor in the will of 1869, offered it for probate, when he was met by appellees with the claim that the will of 1877, which, in terms, revokes all other wills, was the last and true will of D. W. Phillips. The will of 1877 was admitted to probate, whereupon appellant, J. G. Phillips, as nominated executor, appealed to the common pleas court, where the question as to which of the two papers, if either, was the will of D. W. Phillips, was submitted to a jury, and a finding had in favor of the will of 1877. From that finding this appeal is taken.

The issue below was, whether the testator was of sound mind, and whether the will of 1877 was obtained by undue influence.

The record contains some two thousand pages, with much conflicting evidence; but after a careful reading and consideration of it, we arrive at the conclusion that the weight of the evidence is in favor of the sanity of the testator at the time of the execution of the will of 1877, and that no undue influence operated to secure its execution; but if we were not satisfied of this, we could not disturb the verdict of the jury unless the weight of the evidence was flagrantly against the finding of the jury, as verdicts in will cases are to be treated in this court as verdicts in other cases.

The one hundred and sixty-nine assignments of errors in this case may be condensed and stated, in substance, as follows:

First. That the court should not have submitted the issue on each of these wills to the same jury, as it is claimed the field of testimony necessary to go over on these two issues was so great as to create confusion in the minds of the jury.

Second. That it was error to allow the devisees, B. H. Ray and Ben. Doom, to testify.

Third. That the court erred in various instances in the admission and rejection of evidence.

Fourth. Errors in giving and refusing instructions.

Fifth. In giving personal judgment against appellant, J. G. Phillips, for cost.

As to the first assignment, we think the court below pursued an eminently wise and proper course in submitting the issue of will or no will, as to each of these papers, to the same jury, and acted properly in the method of introducing testimony to sustain or overthrow.

The second objection, that the devisees, Ray and Doom, were permitted to testify, has been repeatedly decided in favor of their competency. (Milton v. Hunter and Cave v. Cave, 13 Bush, 163 and 453; Flood v. Pragroff, 79 Ky., 614.)

The third point covers the admission and rejection of evidence in a great number of instances. We have examined them all, and while, in several cases, we find technical errors both in the admission and rejection of evidence, there is nothing to materially injure or prejudice appellants, and we will therefore not discuss them in detail, as it would be a useless consumption of time.

The principal complaint on the fourth point is, that the court did not correctly define to the jury that soundness of mind necessary to the valid making and execution of a will. The court defined it as follows:

"That soundness of mind in making a will is capacity to know by the testator his legal heirs, and his estate, and to dispose of the same in a rational manner, according to a fixed purpose of his own."

This is the same instruction, in substance, that was given and approved in Tudor v. Tudor, 17 B. M., 391, and which has been so long and so repeatedly indorsed by this court, that we are not inclined to disturb it, although it be possible to get an instruction with more technical accuracy. It is not calculated to mislead the jury, and that is reason enough for allowing it to remain as it is. (Wise v. Foote, Op. Feb. 5, 1883, 4 Law Rep., 645.)

The instructions given by the court as to insane delusions and undue influence accord with our view of the law and with the repeated rulings of this court. An attempt at a fuller and more accurate definition of any of these words would more probably mislead and confuse the average juror than enlighten him.

Many of the instructions asked for by appellants and refused were in reference to the weight to be given certain...