Wood's Ex'r v. Devers

• Decision Date: 07 April 1892
• Parties: Wood's Ex'r et al. v. Devers et al.
• Court: Kentucky Court of Appeals

19 S.W. 1

Wood's Ex'r et al. v. Devers et al.

Court of Appeals of Kentucky.

April 7, 1892

Appeal from circuit court, Fayette county.

"Not to be officially reported."

The will of Harriet Woods being admitted to probate, B. F. Devers and others, her heirs at law, appealed to the circuit, where they had a verdict and judgment. Proponents appeal. Affirmed.

PRYOR J.

The will of Harriet Woods, who died in Lexington on the 28th of October, and in the year 1883, was admitted to probate by the Fayette county court on the 3d of November of the same year. It was signed and properly executed by her on the 4th of September, 1883. The attesting witnesses were two physicians R. L. Coleman and T'Foster. Her estate at the date of the will was of the value of five or six thousand dollars. After making, by items 2 and 3 of the will, a devise of $500 to Adelia Devers, and of a like sum to Barbara Strobridge, she devised to the children of her uncle (John Woods) $3,000, and provided that, if none of those children were living at her death, that legacy was to become a part of her residuary estate, and pass accordingly. By item 7 of the will the testatrix devised all of her property "not required for debts, legacies, and the cost of a monument" to her friend and executor, R. A. Thornton, in consideration, as the testatrix expresses it, "of his kindness to me, and as a compensation for his services in administering my estate; and I nominate and appoint him to be executor of this, my will and request the court to require no security of him," etc. The heirs at law of the testatrix took an appeal from the order of probate, and contested the validity of the writing, on two grounds: First, the want of mental capacity on the part of the testatrix to make a will second, that the writing offered as her will was the result of an undue influence exerted over the testatrix by the draughtsman, who was one of the beneficiaries of that instrument. The will was written by R. A. Thornton, who is made residuary devisee, and who at the time was her confidential adviser, and had been for some time prior to the execution of the paper. The issue of will or no will was presented to the jury, and they returned his verdict "We, of the jury, find from the evidence that items one, two, three, four, and five of the paper purporting to be the last will of Harriet Woods, and also so much of the item seven as appoints R. A. Thornton executor of said will, to be the last will of Harriet Woods. We further find that the remainder of said paper is not the will of Harriet Woods. We further state and put on record that the foregoing verdict is not intended to impugn the motives of R. A. Thornton, but, on the contrary, desire to exonerate him from all intentional fraud or deception in any way planned or carried out by him. S. H. Shivel, Foreman." That part of the instrument which, by the verdict, is held to be no part of the will, embraces alone the devise to the draughtsman, and, as the jury have said that the testatrix had mental capacity to execute the paper when finding against the devise to the draughtsman, it must have been based on the belief that this part of the instrument was the result of an undue influence exercised over the testatrix by the appellant Thornton.

Section 35, c. 113, Gen. St., provides that a jury shall be impaneled to try whether or how much of any testamentary paper produced is or is not the last will of the testator, and the right of the jury, either with or without the statute, to say how much of the paper is valid, and what part invalid, is not questioned. It is contended by counsel for the appellants that there is no evidence of fraud or undue influence exercised or attempted to be exercised to procure this will or any part of it, and, if the verdict is sought to be maintained on the ground of undue influence, there is no evidence whatever to support it; and this branch of the case will alone be considered. We have read carefully the testimony in this case, and the testimony for the propounders of the will, when considered alone, makes out a clear case that its contents was the offspring of the testatrix's own mind, and that her mental capacity could not well be doubted. The arrangements for attesting the will were made by her; and the attending physician, at her own request, procured the other attesting witness, and both establish the fact that the paper is the will of Harriet Woods. They are sustained in their conclusion by many other witnesses, who knew the testatrix well, and had known her for years. There is also an absence from this record of anything said or done by the appellant to induce the testatrix to execute the paper, and, if his presence or action led to such a result, he was unconscious of that fact; and it is manifest that the condition of her estate, and the circumstances surrounding him, at the time, induced the belief that what...