Turner's Guardian v. King

• Decision Date: 14 November 1895
• Citation: 98 Ky. 253,32 S.W. 941
• Parties: TURNER'S GUARDIAN et al. v. KING et al.
• Court: Kentucky Court of Appeals

32 S.W. 941

98 Ky. 253

TURNER'S GUARDIAN et al. v. KING et al.

Court of Appeals of Kentucky.

November 14, 1895

Appeal from court of common pleas, Bell county.

"To be officially reported."

Contest of a will between P. K. Turner, by his guardian, and others and J. C. King and others. From a decree admitting the will to probate, the guardian appeals. Reversed.

W. H Holt and C. W. Metcalf, for appellant.

J. W Alcorn, and J. Smith Hays, for appellees.

PRYOR C.J.

A paper purporting to be the will of Alvis Turner was admitted to probate in the Bell county court, and on an appeal to the circuit court the order of probate was sustained. The testator, at the time of his death, left his mother and two half-brothers surviving him; also, his grandmother and uncles and aunts. With one or more of his uncles he was not on friendly terms, but with his other relations no feeling of hostility existed. He left an estate valued at about $20,000 and, in the devise made, gave to his mother $25, to his half-brother (the appellant) $1,000, and the balance of his estate, save one or two small legacies, he gave to his cousin, Jefferson King, the appellee. The paper disposing of this estate was executed on the 4th of March, 1889, and in less than one month from that date the testator was wounded by one Burch. In this record is interwoven the history of a relentless warfare carried on by two brothers, who were the leaders of their respective clans,-Jack Turner, the father of the testator, of the one; and his brother, King Turner, of the other. This character of testimony was introduced by the propounders of the will for the purpose of showing the hostility of the father of the testator to members of his own family, and that this feeling had descended from the father to the son (the testator), whose dislike for his own kindred, by reason of their treatment of his father, relieved him from any natural obligation to provide for them in the final disposition of his estate. The father of Alvis (Jack Turner) married Miss Lane, and Alvis was the offspring of that marriage. He killed Lane, the father of his wife, in the year 1872; and, shortly after, Turner was shot from the window of an hotel kept by the husband of a sister of Turner's wife. It is then said that Alvis (the testator), avenging his father's death, slew one of the opposing clans, and was then killed by one Burch; and the appellee King, who had been the fast friend of Alvis, took the life of Burch. The mother of Alvis, shortly after her father had been killed, left her husband, or he abandoned her, and in a few years she left this state for the state of Missouri, and there married a man by the name of Lincogle. She took with her to Missouri her daughter, who lived until she was 17 years of age, and died shortly before the paper in controversy was executed.

In the examination of this record, we find but two issues presented in the jury by the instructions given. One of those issues is: Was the paper said to be the will of Alvis signed by him? If so, was he at the time 21 years of age? There was a mass of testimony on each side as to the age of Alvis when the paper was signed, and this seems to have been the issue to which the attention of the court and jury was called on the trial below. It is insisted by counsel for the contestants in this court that the paper was procured by the exercise of an improper influence over the testator by the appellee, who is the principal devisee; and yet no instruction was asked by the contestants upon that theory, and the case seems to have gone to the jury on the formal instruction as to the signing of the paper by the testator, and its attestation by the subscribing witnesses in his presence and at his request, and an instruction based on testimony conducing to show that the testator was a minor when the paper was signed. The two instructions given are unobjectionable, and, if the contestants desired to present the question of undue influence, an instruction should have been offered on that branch of the case, as it was not the duty of the trial court to raise the issue for them, although the testimony may have warranted the consideration of such an issue by the jury. In a criminal case it is the duty of the court to give the whole law of the case; but in a civil action the court is not required, unless called on to do so, to give instructions embracing any theory of the plaintiff's cause of action that is or may be supported by his testimony or that of the defense; and, if the instructions given are otherwise unobjectionable, the fact the court his omitted to give to the jury every instruction authorized affords no ground for a reversal. We can therefore look only to the question raised as to the competency of certain testimony considered by the jury, and to which objections and exceptions were made and taken at the time the witnesses were permitted to answer.

On the...