
    Ca.su 106 — CONTESTED WILL
    December 4.
    
    Zimlich, &c., v. Zimlich, &c.
    APPEAL PROM JEPPERSGN COURT OP COMMON PLEAS.
    1. Contested Will — Evidence—Instructions to Jury. — In a contest of a will upon the ground of the testator’s mental incapacity, or of undue influence, evidence of gross inequality in the distribution of the testator’s estate ¡among the natural objects of his bounty, is not, taken alone, competent evidence, but may be considered in connection with other evidence of testator’s incapacity or of undue influence; but it is error in instructing the jury to single out such evidence, and tell the jury that .they may consider it. It should go to the jury to be considered by them as other evidence without suggestion from the court.
    2. In order to invalidate a will upon the ground of undue influence it must appeur that the testator, at the time of making the will, could' not resist the alleged undue influence, and was not a free agent in the execution of the will.
    3. Verdict Against Will not Supported by the Evidence. — As thirty-three witnesses who had good opportunity to judge of the testator’s mental capacity swore that he was competent to make a will, while only four witnesses, whose opportunity for judging of the testator’s mental condition was not so good, swore that he was not competent to make a will, a verdict against the will is so clearly against the weight of the evidence as to indicate passion or prejudice, unless the jury were misled by the instructions.
    ROBERT J. ELLIOTT, J. O. HEMINGRAY, JAS. R. W. SMITH, GEORGE L. BVERBACH eor appellants.
    1. The law presumes the sanity of the testator, and the contrary must be shown by the contestants after the propoundors have made out a prima facie ease. (Milton v. Hunter, 13 Bush, 166; Singleton v. Singleton, 8 Dana, 316; Hawkins v. Grimes, 13 B. M., 268.)
    2. Influence obtained by proper persuasion and argument, or by mere • appeals to the affections, is not undue influence in a legal sense. (Bush, &c., v. Lisle, &c., 89 ICy., 393; Wise v. Eoote, 81 ICy., 10; Lucas v. Cannon, 13 Bush, 650; Turley v. Johnson, 1 Bush, 117.)
    3. If a testator has the requisite capacity to make a will he may dispose of his estate as he deems proper; and an unequal disposition is only a circumstance to be considered in connection with other facts bearing on the question of mental capacity. It is not proper to give it undue prominence by calling attention to it in the instructions. (Broaddus’ Devisees v. Broaddus’ Heirs, 10 Bush, 299.)
    i.The verdict against the will is not supported by the evidence, and the-court should, -therefore, reverse the judgment with, directions to dismiss the appeal from the order of the county court admitting the will to probate. (Bush, &c., v. Lisle, &c., 89 ICy., 393; Broaddus’ Devisees v. Broaddus’ Heirs, 10 Bush, 299.)
    O’NEAL, JAGICSON & PHELPS eor appellees.
    1. The instructions are unobjectionable. No-fault can be found with-the definition of either testamentary capacity or undue influence. ¡
    2. The law will not presume in the face of an apparent and unexplained injustice either, soundness of mind or absence of undue influence.,
    3. It was not error to instruct the jury that the fact of discrimination, if any, might, be considered by them in reaching a conclusion.
    
      4. The court will disregard any errors in instructions that do not affect the material rights of the parties. (Bohlsen v. Bohlsen, 5 Ky. Law Bep.)
    BABNETT, MILLBB & BABNETT oe counsel on shME side.
   JUDGE BENNETT

delivered the opinion oe the court.

Joseph Zimlich, a resident of Jefferson county, Ken-, tncky, in October, 1885, made his will. , He died in 1887. He was twice married, and left eight children by bis first wife, the most of whom were grown, and two by his second wife, who were infants of tender years. His second wife also survived him. He willed to his wife during her life or widowhood the farm, containing twenty-six acres, .on which he lived, remainder to ,six of his eight’ children' by his first, wife, and his city property to his said wife’ during her life or widowhood, remainder to his eight children by his first wifej and sixteen acres of land to. his two children by his, second wife, two acres of which he. sub-, sequently sold. . ■ ■ ■. : v

1 -The children :by the first wife successfully attacked this will upon the grounds, first, of the testator’s ,Want of testamentary capacity, and second, the1 undue, influence of his wife. - :

. Upon the trial of these issues four witnesses swore that the testator, in their opinion, had .not capacity to-make a Will. On the 'other hand, thirty-three witnesses swore that he was mentally capable of making, a will. These witnesses-fire, first, the attorney, that wrote the will, and second, another- attorney who had a business transaction- with the testator After the will had .been made/. These witííessés testify that the, testator was quite competent1 to. make; a will. Third,. the testator’ a banker; fourth, his tenants, who had frequent business transactions with him before, about the time of the making of the will, and after then. All swear that he was competent to make a will. Fifth, his neighbors swear to the same fact; and lastly, several of his children by his first wife swear that they saw no change in his mental faculties, but only physical decay. Now, the four witnesses that swear to the testator’s incapacity give no fact or circumstance that indicates that they possessed opportunities to judge of the testator’s mental capacity that the witnesses for the will did not possess. On the contrary, it is evident that the latter witnesses possessed the best opportunities to judge of that matter. Without further elaboration, it is sufficient to say that the verdict of the jury is so clearly against the weight of evidence as to indicate, if they were not misled by instruction No. 5, passion or prejudice. The question then arises, was instruction five given by the court erroneous ?

Said instruction is: “That the testator, if of sound mind, and not controlled by the undue influence of others, had the right to discriminate between the objects of his bounty in such manner as he chose to do, if done by him of his own volition, and understanding at the time the effect of such discrimination between the objects of his bounty; that if the testator, in making such discrimination, showed unreasonableness or gross inequality, the jury have the right to consider that fact in connection with all the other evidence in determining whether or not the testator was, at the time of making his will, of sound mind, and not under undue influence of others.”

While gross inequality of distribution between the natural objects of the testator’s bounty does not of itself, or by itself, establish undue influence or the want of testamentary capacity, yet, in connection with other evidence of testamentary incapacity or undue influence, such inequality is competent evidence. But is not the singling out such evidence in an instruction misleading? It seems to us that it is. The jury are told that the test of testamentary capacity is the testator’s capacity to know his heirs and relations, and the claims that they have upon his bounty, &c.; and as it is known by all that the claims of the testator’s heirs, under like circumstances, upon his bounty are equal, the fact that the distribution among them was grossly unequal would be as readily considered by the jury as evidence upon the subjects of testamentary capacity or of undue influence, as any of evidence tending to establish these subjects, the only difference being that the gross inequality can only be considered in connection with other evidence of testamentary incapacity or of undue influence. This results from the fact that the testator has the legal right to dispose of his estate as he may wish, even to discard the natural objects of his bounty, and give his estate to a stranger without assigning or having any good reason for so doing whatever. This is his perfect right of alienation; and to say that the fact that he disposed of it out of the natural or usual course, thereby exercising his perfect right, was of itself evidence of a want of a disposing mind or of undue influence would virtually defeat this right. It is, therefore, taken alone, incompetent evidence of testamentary incapacity or undue influence; but. after the introduction of other evidence, tending.,,to show tesr tamentary incapacity or undue influence, the fact of gross inequality may. also go. to the jury to be considered by them as evidence of that fact, and it then goes to the jury as any. other . competent evidenpe upon that subject, and the force and effect of which they can .see- and consider as well, .as other competent evidence, without their attention being especially directed , to it by. the court, and the doing of which by the court .is calculated, to, give the fact, in .the minds of, the jury,- undue prominence. , ,

When the facts, or inferences therefrom all tend, to illustrate, any issue, it is not right- -for the court to single out -any, one of., them, in an instruction. It is.misleading .to .do so. . It.is only when the fact put in , evidence is .incompetent, -except, for a., particular .purpose,. that, it is proper .for the court to tell,the jury for what■< purpose ■, they may., consider it. But the-inference .that, may .be drawn from the fact of gross , inequality, of the distribution, of .the testator’s estate, relates ¡to. the whole issue of testamentary capacity or indue influence, the bearing .of. whic-h .may be .as ueadil-y .seen, and .comprehended. Jay the jury,as any other ..fact appertaining to that issue, and to. single ■out, that fact in an. instruction is .misleading, > (Broaddus, &c., v. Broaddus,. &c., 10 Bush, 299.)

. The rule as to .undue influence is, that- in. order to invalidate a will on that account it must appear . that the testator, at the time of, making the will, could not resist it, and that the, will was, thp, result of that infltienpe,.,,and: .not the ,freq. agency , of the .testator.

(Lucas v. Cannon, 13 Bush, 650.)' While there is ¿proof that the'wife was on (friendly terms'with the testator, and' that she had that kind of influence over him that a good wife usually has over a kind, and considerate husband, the proof wholly fails to establish undue influehce on the testator in' making the will.' . Oh; the contrary, the proof establishes' the 'fact ■ that the testator wás controlled by his own mind, and in making the will followed a fixed purpose of his ■own.

The judgment is reversed, and the cause is remahded ■with directions to grant a new .trial.  