Savage v. Bulger

• Decision Date: 23 January 1903
• Citation: 76 S.W. 361
• Parties: SAVAGE v. BULGER ET AL.
• Court: Kentucky Court of Appeals

76 S.W. 361

SAVAGE v. BULGER ET AL.

Court of Appeals of Kentucky.

January 23, 1903

Appeal from Circuit Court, Mason County.

"Not to be officially reported."

Action by Ellen Savage against Nellie Bulger and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

A. E Cole & Son and L. W. Galbraith, for appellant.

W. D Cochran, for appellees.

SETTLE J.

This is a contest over the will of Ezekiel Williams, colored, who by industry and economy succeeded in accumulating a considerable estate. His intelligence and excellent character seem to have commanded the respect of all who knew him. His family at the time of his death consisted of a woman, Nellie Williams or Bulger, whom he recognized as his wife, and three children who had been born to them. His will devised his entire estate to the woman Nellie and their children--one-third to her, and the remaining two-thirds to the three children in equal shares. The will was admitted to probate in the county court, but the appellant, Ellen Savage, sister of the testator, entered a contest by taking an appeal to the circuit court from the order of the county court admitting it to probate. As the other brothers and sisters of the testator refused to unite in taking the appeal, they, with the devisees named in the will, were made parties to the proceedings in the circuit court. The trial in the circuit court resulted in favor of the validity of the will, and, a new trial having been refused the appellant, she prosecutes this appeal.

It is contended by appellant that the testator did not possess sufficient mental capacity to make the will, and furthermore that it was procured to be made through the undue influence of the woman Nellie, known as his wife.

A careful examination of the evidence found in the record satisfies us of the testator's mental capacity. Indeed, on this point the evidence is so clear and convincing that we deem it unnecessary to comment on it, except to say that not only those present when the will was executed, but all the witnesses who saw him on the day it was executed, testify positively to his competency. We may also add that the draftsman of the will was the physician by whom the testator was attended throughout his last illness. He was familiar with every phase of the disease with which the testator was afflicted, as well as the condition of his mind, and testified that the testator was of sound mind when the will was made. It may further be said that the will itself testifies to the memtal capacity of the testator, as it is consistent in its provisions and rational on its face.

As to the question of undue influence there is very little contrariety of evidence. Two or three witnesses testify to some expressions on the part of the woman Nellie to the effect that she desired and expected such a will as was made by the testator, but, taking these expressions in their strongest sense, they do not indicate any unusual solicitude on her part for the making of the will. Indeed, in view of the mutual affection and confidence that seemed to exist between her and the testator, she might have been expected to display a greater degree of solicitude than was manifested by her. It is to her credit that there is no evidence whatever tending to show that she resorted to flattery, excessive importunity, or even legitimate persuasion, to procure the execution of the will. She was not the wife by marriage of the testator, but through a long series of years lived with and served him in that capacity. We do not mean to express approval of such a connection, for it might have been changed by the marriage of the parties before the testator's death, but there is much to be said by way of extenuation. It is shown by the evidence that the relationship was entered into when the woman was a slave, and soon after the freedom of the testator had been purchased by his father. Before the abolition of slavery in this...