
    Little’s Administrator v. Sizemore.
    (Decided March 24, 1925.)
    Appeal from Breathitt Circuit Court.
    1. Wills — Rule for Determining Whether Instrument is Will Stated —Any instrument regardless of form, executed with formalities required of wills, if intended as will, and not to take effect until maker’s death, and if revocable at maker’s pleasure, may be construed as testamentary; whether instrument is revocable being dependent on its legal effect when executed. If it then becomes binding or vests present interest in beneficiary, it is irrevocable, but if not binding it is revocable.
    2. Bills and Notes — “Good Consideration” will Not 'Support Promise to Pay at Death Out of Estate. — '“Good consideration” will not support a writing promising to pay $1,500.00 “at my death . . . out of my estate.”
    3. Wills — Not Error to Construe Instrument Promising to Pay Designated Person $1,500.00 on Testator’s Death to be Testamentary. —It was not error to construe instrument promising to pay $1,500.00 to designated person on maker’s death, attested by two witnesses, and not for valuable consideration to be testamentary, in view of evidence that maker intended it as will.
    4. Wills — Where Testimony of Nonexperts Conflicting Question of Testator’s Mental Capacity was for Jury. — Where testimony of nonexperts was conflicting, question of testator’s mental capacity was for jury.
    A. F. BYRD and T. T. COPE for appellant.
    RYLAND C. MUSICK for appellee.
   Opinion of the Court by

Judge Clay

Affirming.

On April 25, 1921, William M. Sizemore tendered and offered for probate in the Breathitt circuit court the following writing as the last will and testament of W. B. Little, deceased:

“this the 15 day of March, 1920, payable at my death I promise to pay William M. Sizemore the sum of $1,500.00 fifteen hundred dollars out of my estate which I have at that time.
his
“ W. B. x Little mark
“Witness:
Johnny Sizemore,
Maud Ingram.”

Probate was refused on the ground that the writing was a note and not a will, and on the further ground that W. B. Little was not of sound mind and disposing memory when the writing was executed. Prom that order, William M. Sizemore prosecuted an appeal to the Breathitt circuit court. There was then pending in that court an action to settle the estate of W. B. Little. William M. Sizemore was made a party defendant, and filed the note as a claim against the estate. The two actions were consolidated, and a jury, to. which the issue was submitted, sustained the writing as the will of the testator. Judgment was entered accordingly, and Little’s administrator has appealed.

Appellant’s first contention is that the writing is not a will. In the determination of this question, the following rules are controlling: Any instrument executed with the formalities of a will, no matter in what form, if intended as a will, and not to take effect until the maker’s death, may be construed as testamentary and admitted to probate, provided it is revocable at any time at the pleasure of the maker; whether the instrument is revocable or not depends on its legal effect when executed. If then it becomes a binding and enforceable obligation, or vests a present interest in the beneficiary, it is irrevocable, and therefore not a will.

On the other hand, if no binding obligation is created, and no present interest passes, the instrument is revocable and will be deemed testamentary in character. Jackson v. Jackson, 6 Dana 257; Webster v. Lowe, 107 Ky. 293, 53 S. W. 1030; Goad v. Lawrence, 24 Ky. L. Rep. 262, 68 S. W. 411; Hunt v. Hunt, 119 Ky. 39, 68 L. R. A. 180, 82 S. W. 998, 7 Ann. Cas. 788; Milan v. Stanley, 33 Ky. L. Rep. 783, 17 L. R. A. (N. S.) 1126, 111 S. W. 296; Morrison v. Bartlett, 148 Ky. 833, 147 S. W. 761, 41 L. R. A. (N. S.) 39. By the writing in question the sum of $1,500.00 was payable at the maker’s death out of such estate as he had at that time. ■ The obligation, was not executed for a valuable consideration, as was the case in Price v. Jones, 105 Ind. 543, 5. N. E. 683, and Hegeman v. Moon, 131 N. Y. 462, 30 N. E. 487. A ‘ ‘ good consideration” will not support such an instrument. Sullivan v. Sullivan, 122 Ky. 707, 29 R. 239, 92 S. W. 966, 7 L. R. A. (N. S.) 156. Hence, the instrument was not binding on the maker, and he had the right to revoke it at any time. In addition to this, the circumstances attending the execution of the instrument -tend to show that it was intended as a will. We are, therefore, of the opinion that the chancellor did not err in holding that the writing was testamentary in character. Wells v. Lewis, 190 Ky. 626, 228 S. W. 3.

Those who were present when the paper was executed say that the testator dictated its contents, and that his mind was clear at the time. On the other hand, several neighbors of the testator say that he was afflicted with epilepsy, and during the last six month» of his life did not have sufficient mind to enable him to know the character and value of his estate, the natural objects of his bounty, and to dispose of his property according to a fixed purpose of his own.

In view of the conflicting evidence, and of the further fact that all of the witnesses were nonexperts, we conclude that the question of testamentary capacity was for the jury.

Judgment affirmed.  