Wise v. Foote

• Citation: 4 Ky.L.Rptr. 643,81 Ky. 10
• Parties: Wise, & c., v. Foote, & c., & c.
• Decision Date: 05 February 1883
• Court: Court of Appeals of Kentucky

81 Ky. 10

4 Ky.L.Rptr. 643

Wise, & c., v. Foote, & c., & c.

Court of Appeals of Kentucky.

February 5, 1883

1. The contract between appellant and the testator, the checks letters, & c., wholly or partially in the hands of the latter, his bank accounts, and amendment to the city charter in his handwriting, are competent evidence upon the issue of capacity to make a will.

2. The opinions of witnesses not experts as to the mental capacity of the testator are relevant, if they knew him and had an opportunity of observing him. The weight and value of such opinions are for the consideration of the jury.

3. This court will not reverse upon the ground that leading questions have been asked of a witness whose answers bear the impress of truth.

4. The fact that appellee, Mrs. Foote, testified, should be treated as an election by her to exclude her husband, she being the meritorious cause of action.

5. Influence obtained by proper persuasion and argument, or by mere appeals to the affections, is not undue influence in a legal sense.

6. But influence obtained so as to enable a party to destroy the free agency of the testator, is such as the law condemns as undue influence.

7. Capacity to make a will exists where the testator has mind and memory sufficient to understand that he is selecting the persons whom he desires to have his property, to know his property, and the objects of his bounty.

8. There is no error in either giving or refusing instructions.

APPEAL FROM KENTON CIRCUIT COURT.

MCKEE &amp FINNELL AND W. W. CLEARY FOR APPELLANTS.

1. There was a studied, persistent effort, by all the other parties, by every means, fair or foul, to deprive appellant James S. Wise, of any interest in the estate of his grandfather.

2. Many questions asked of witnesses are leading.

3. It was error to deprive appellant of the testimony of C. D Foote, husband of Mary Foote, one of the appellees.

4. Instruction No. 3 is erroneous. It makes the test of the capacity of Arnold to depend upon his knowledge of what he was doing at the time he made the erasures, excluding from the jury all question as to his testamentary capacity at any other time.

5. The court erred in refusing to give instructions 1, 2, 3, and 4 asked for by appellant. (Williams on Executors, vol. 1, p. 179; Redfield on Wills, ch. 8, sec. 3, p. 368; Alexander v. Waller, 6 Bush, 341; 3 B, Mon., 393; Armstrong v. Armstrong, 14 B. Mon., 338.)

BRECKINRIDGE & SHELBY FOR APPELLEES.

No brief.

OPINION

HARGIS CHIEF JUSTICE.

The appellant Wise was one of several contestants of the will of James G. Arnold, which was probated by the county court, and, on an appeal to the circuit court, again sustained.

The testator bequeathed $10,000 each to his grandchildren except two, whom he omitted, and devised the residuary of his estate to his own children.

The grounds on which the probate was opposed were incapacity and undue influence, and many questions relative to the competency of witnesses and the relevancy of testimony were raised in the trial of those issues, and are presented by the numerous and comprehensive assignments of error, which also embrace alleged errors of law in the instructions given to the jury.

The appellant is a grandson of the testator, and an only child of one of his deceased daughters, and would, therefore, in the event of the rejection of the will, be entitled to one fifth of the whole estate as heir and distributee.

The record is full of all sorts of counter-currents running through the trial below, but as they now mingle in one untroubled stream, except the branch represented by the appellant Wise, only his assignment of errors will be considered.

The evidence is amply sufficient to sustain the verdict, if, as we think, no error of law affecting the substantial rights of the appellant was committed at the trial.

The written contract between appellant and the testator, the checks, letters, receipts, and other documents, wholly or partially in the handwriting of the testator; his bank accounts and amendment to the city charter in his handwriting, were competent and relevant evidence to the issue of incapacity.

They represented transactions, and the manner in which he participated in them, within a period sufficiently connected with the testamentary act to illustrate its character and the condition of his mind when he performed that act.

And it is no reason for their rejection, or the rejection of any of them, that, from the verdict of the jury, it may be seen that the jury believed and found him mentally incompetent at a time antedating the transaction. How could the able judge who presided have prescience enough to anticipate the verdict of the jury? or what right had he to say in their presence, either by word or ruling, that the testator was incompetent, after a given date, to sign or write a paper or perform an act, when that was the very question the jury were, by law, required to try?

As to the opinions of witnesses, who were not experts, touching the mental capacity of the testator, this court has held that they are relevant, if the witnesses whose opinions on that subject are sought knew the testator, and had any...