
    Case 11 — WILL CONTEST
    March 12.
    Bramel, &c. v. Bramel, &c.
    APPEAL FROM MASON CIRCUIT COURT.
    X. Wills — Instructions.—On the trial of a will contest, there being no question as to the execution of the will or of the presence of the attesting witnesses or their signatures, it was the province of the court to- say whether the will was properly executed, and these things should not have been left to the jury; but this was not prejudicial to the rights of the appellants in this case, because the jury, by its verdict, found that the will was properly subscribed as required.
    2. Credible Witnesses to Will — The word “credible” in the statute, requiring a will to be attested by two credible witnesses, ' is used in the sense of competent, and it is for the court to determine the competency of such witnesses, but the error in submitting it to the jury in this case was not prejudicial to> appellants.
    3. Instructions — Practice.—Instructions given to a jury on a trial are to be considered as a whole, and omissions in one instruction may be supplied by reference to another; therefore, on the trial of a will contest where the jury was told in one instruction that they must find for propounders if they believed the testator to be of sound mind, and in another to find against them if they believed he was unduly influenced, the two instructions should be treated and construed together, although it would be better practice to have added to the last-named instruction the words “unless thej' believe as indicated in the - other.”
    4. Will Contests — Burden of Proof. — On the trial of a will contest the burden as to the testamentary capacity of the testator is on the propounders until the establishment of a prima facie case; but after that the burden of showing that the testator was not in fact of sound and disposing mind and memory at the time the will was executed is shifted upon the contestants.
    5. Mental Capacity Necessa.ry — Instruction.—The capacity required of one in making a will exists when he has mind, memory and will enough to know his property and the natural objects of his bounty and his duties to them, and to understand that he is selecting the persons whom he wishes to have his property, and to dispose of it in accordance with, a settled purpose of his own.
    E. L. WORTHINGTON eob arpeblants.
    1. The first instruction was erroneous and misleading, and calculated to confuse the jury by submitting an issue to them which the court afterwards passed upon. It left to the jury to pass upon the question whether the two witnesses to the will were credible witnesses or not, and thereby the idea was suggested to the jury that if these two witnesses testified that the decedent was of sound mind they must, if they were credible witnesses, so find. Ward v. Whipps, 16 Ky. L. R., 403; Fuller v. Fuller, 83 Ky., 345.
    2. By instruction number one the jury was told to find for the will if they believed the decedent was of sound mind and the two witnesses were credible; in instruction number seven they were told in substance to find against the will if they believed it was obtained by undue influence. These instructions were conflicting and confusing, and it can not be reasonably assumed that the jury were of sufficient intelligence to supply the defects in the court’s instructions.
    3. The second instruction 'is erroneous because it told the jury that if they believed the instrument, of writing consistent in its provisions and rational on its face that the presumption was that the decedent was of sound mind at the time of its execution, and that the burden then shifted to contestants to show that he was not of sound mind at that time. The burden of proof in such cases never shifts. Kentucky Wagon Manufacturing Co. v. City of Louisville, 17 Ky. Law Rept., 366; Greenleaf on Evidence, see.-; 1 Jarman on Wills, note, page 64, 6th Ed.
    4. The case of Milton v. Hunter, 13 Bush, 171, does not decide that the burden of proof shifts, but merely that the propounders may rest their case on the statutory proof of execution of will.
    5. Instruction number 3 attempting to define testamentary capacity in so far as it says that such capacity is “not necessarily such strength of mind as will enable a man to fairly contract with another at arms length” is erroneous. The decedent at the time of his death had estate worth from $50,000 to1 $75,000, and sixth instruction in effect said to the jury that he may be capable of disposing of this large estate with less mind than is ordinarily required in any every-day trivial business transaction.
    
      6. The departure by the court from the use of the language “according to a fixed purpose,” generally used in describing testamentary capacity, and substituting the words “a then settled purpose” was misleading and confusing. The word “then” before “settled” suggested to the jury the idea that if at the very moment of the execution of the will it was his settled purpose that Was sufficient, whereas the rule 'is that he must have-had a fixed purpose which had not recently or suddenly changed.
    C. D. NEWELL on same side.
    1. The first instruction was erroneous in submitting to the jury the question as to whether the subscribing witnesses were-credible witnesses. The word “credible” is used in the statutes-as synonym for “competent.” Fuller v. Fuller, 83 Ky., 349.
    2. Attesting witnesses of the will stand upon the same footing as all other witnesses in the case, and it was erroneous for the court to submit the question as to whether they were credible or not to the jury. The jury might very well have-thought that if they found against the will they would necessarily find that the two attesting witnesses were not credible. Crandell’s Appeals, 38 Am. St. Rept., 375.
    
    3. Instructions numbers one and seven are contradictory. One directs the jury to find one way if they believe certain things, and the other directs the jury to find the other way if they believe certain other things. They might very well have believed both. Such instructions are certainly confusing and misleading.
    4. To attempt under an instruction to define testamentary capacity by comparing it with other kinds of mental capacity is confusing and confounding to a jury.
    5. The expression, “then settled purpose,” substituted in the instruction for “fixed purpose,” refers necessarily to flitting and momentary purposes, and lacks the characteristics of stability and decisiveness of fixed intention necessary to make any act. by a man his deliberate purpose.
    W. H. WADSWORTH, J. N. KEHOE, A. D. COLE ox counsel on-same SIDE.
    L. W. ROBERTSON foe appellees.
    1. Modest persuasive argument addressed to the understanding, or mere appeals to the affection, do not constitute undue influence-By -undue influence is meant an influence- obtained by importunity and superiority of will and mind and character by which dominion over the will of the testator is acquired to such an extent as to destroy free agency; and this dominion must not only exist but must have been actually exercised. Wise v. Foote, 81 Ky., 15; Bush v. Lisle, 89 Ky., 401; Johnson v. Stivers, 95 Ky., 124; Barlow v. Walters, 16 Ky. Law Rept., 426.
    2.Instructions given in this ease when taken all together correctly expound the law as to testamentary capacity and undue influence. Wise v. Foote, 81 Ky., 15; Poschet v. Poschet, 82 Ky., 93; Fee v. Taylor, 83 Ky., 259; Fuller v. Fuller, 83 Ky., 351; Bush v. Lisle, 59 Ky., 401; Johnston v. Stivers, 95 Ky., 125; Barlow v. Walters, 16 Ky. L. R., 426.
    COCHRAN & SON on same side.
    1. The propounders were the only ones who could have been prejudiced by the requirement of the instruction that the jury should believe that the witnesses were credible, as if they had not in fact believed that, under the instruction, they must have found against the will.
    2. When instructions numbers one and seven are considered together, the jury could not have possibly misunderstood them. It must be presumed that the jury had ordinary common sense. But the instruction as to undue influence should not have been given at all, as there was absolutely no evidence tending to show undue influence, and nothing upon which to base such instruction.
    3. At the outset of the trial in a will contest the burden is upon the propounders to show that the will in question was duly executed, and that the decedent was of sound mind, and is upon the contestant to prove that the will was obtained by undue influence. But if the propounders prove the due execution of the will, and that it is rational in its provisions, the presumption then arises that the testator was of sound mind, and the burden shifts to the contestants to show that he was not of sound mind. Hawkins v. Grimes, 13 B. M., 257; Milton v. Hunter, 13 B. M., 163; Flood v. Pragoff, 76 Ky., 611; Fee v. Taylor, 83 Ky., 259; Johnston v. Stivers, 95 Ky., 130; Barlow v. Walters, 28 S. W. Rept., 785.
    4. It does not require as much mental capacity to1 make a will as is necessary to traffic in property or to manage it advantageously. Howard v. Coke, 7 B. M., 758; Wise v. Foote, 81 Ky., 10; Johnston v. Stivers, 95 Ky., 129.
   JUDGE DuRELLE

delivered the opinion oe the court.

This is an appeal from a judgment of the Mason Circuit Court establishing a paper executed by John Bramel as his last will. He died in March, 1891, in the seventy-ninth year of his age. Although illiterate, he appears, from the evidence in the case, to have been a strong-minded, active and successful man of business, and at the time of his death he and his brother, Turner Bramel, had accumulated a considerable fortune. He had never been married, but for the last forty years of his life had lived with his brother, Turner, whose wife, Martha, attended to the housekeeping duties. The appellants contested the will upon grounds of want of testamentary capacity and undue influence. By his will he left his estate to the wife and four children of his brother Turner, with the exception of an insignificant legacy to a colored boy living on the place, and a legacy of $1,000 to a favorite grandniece. His surviving brother®, and the children of his deceased brother and sisters, were entirely omitted in the will. The testimony in the case is quite conflicting, and shows that he had been in failing health for some time prior to the making of the will, which was followed by his death about seven weeks later. He had grown feebler, and was disposed to make little physical exertion, and showed a tendency to dose at intervals, the symptoms being those which usually accompany old age.

The will was drawn by W. W. Ball and attested by Ball and Thomas Wells, who came to his place for the purpose, having been sent for, according to the testimony, by him. It appears by their testimony that he dictated the terms of the instrument to Ball; that after being written out it was read over to him; he expressed his satisfaction with it, and signed it by mark in the presence of the attesting witnesses.

The contest was not instituted in the county court, nor, indeed, until some twelve months after probate.

Under the circumstances of this case — this will disposing of his estate in an apparently rational manner for the benefit of those with whom he had lived the greater part of his life, who had cared for him in his declining years, and with whom his relations necessarily were closer and more intimate than with anyone else — we should be slow to disturb the verdict of the jury sustaining the will, unless it was manifestly against the evidence, or unless for errors of law to the prejudice of appellant’s substantial rights. We can not say that the verdict was manifestly against the weight of the evidence. On the- contrary, the will itself was a rational one, such as a man in his circumstances might naturally be expected to make; and the circumstances proven in the case do not seem to us to show that any undue influence rvas exerted over the testator. So far as his testamentary capacity is concerned, the fact of Ms dictation of the will without, so far as appears from the evidence, any suggestion whatever by those present as to the disposition which he should make of his estate, is, of itself, evidence of a disposing mind, which would seem to require direct and specific evidence to the contrary to rebut it. Such evidence is not wholly lacking, but it is offset by much evidence, not only of parties directly interested in the result of the contest, but by disinterested witnesses. We are of the opinion that the verdict was not against the evidence, and we will, therefore, consider the errors of law claimed to have been committed upon the trial.

Numerous instructions were given and refused on both sides, and, to those given, the court, of its own motion, ■added two.

Instruction 1 is as follows: “If the jury believe from all the evidence that the instrument of writing read in evidence was subscribed by John Bramel in the presence of two credible witnesses, who subscribed it with their names in his presence, and that said John Bramel, at that time, was of sound mind, they will find said instrument to be his will.”

To this instruction the objection is urged that it was calculated to confuse the jury by requiring them to decide issues which should have been decided by the court; that it put to them, first, the question whether John Bramel signed the paper, and the further question whether the two witnesses were present when he signed it, and signed it as witnesses in his presence. There being no dispute about these matters, it is argued that the court, and not the jury, ought to say whether the paper was properly executed. This contention is sound, upon the authority of Word v. Whipps, 16 Ky. Law Rep., 403. But in this case, as in the case cited, the error was not prejudicial to the rights of appellants, for the jury, by their verdict, found that it was so subscribed, a conclusion to which the court must have come as a matter of law. A further objection to this instruction is that it required the jury to pass upon the question of whether the attesting witnesses were credible witnesses or not, and that, by coupling the question of credibility of these two witnesses with the testamentary capacity of the testator, an a‘Want-age was given to the propounders of the will by giving undue ■weight and prominence to their testimony.

It is true that in the case of Fuller v. Fuller, 83 Ky., 345, this court held that the word “credible” was used in the stat-ute in the sense of competent, and that it was for the court and not for the jury to determine the question of the compe* tency of the attesting witnesses. In that case the propounders of the will complained of the submission of the question to the jury as requiring the jury to decide in their favor a question which, in that case, should have been decided in their favor by the court as matter of law. We can conceive that the jury might in some oases have been misled to the prejudice of the propounders by such an instruction, as it .required them to satisfy the jury that the witnesses were credible; but wTe do not think that this error was prejudicial to the appellants. In the Fuller case the court refused to reverse, although the error in that case was against the propounders.

It is further urged that instruction 7 was erroneous as being inconsistent with instruction 1. That instruction was as follows: “If the jury believe from the evidence that the paper in contest was obtained by undue influence exerted on John Bramel, either by any of the beneficiaries named in the paper, or by any other person, then they will find that the paper in question is not the last will of John Bramel,” following with the definition of undue influence.

Appellants claim that these instructions are contradictory; thatt in one they were instructed to find for the propounders, if they believed Bramel to be of sound mind, and in the other to find against them, if they believed he was unduly influenced. This court has often held that instructions given to a jury are to be considered as a whole, and that omissions in one instruction can be supplied by reference to another, and, while it would have been perhaps better to have added to instruction No. 1 the words “Unless they believe as indicated in Instruction No. 7,” we do not think they could have misled the jury, even if we assume that the record discloses sufficient evidence of undue influence to form a basis for an instruction upon that subject.

Instruction No. 2, also complained of, is as follows: “If the jury believe from all the evidence that said instrument of writing is consistent in its provisions and rational on its face, the presumption is that said John Bramel was of sound mind at the time of its execution, and the burden shifts to contestants to show that he was not of sound mind at that time.”

It is earnestly contended that the burden of proof does not shift, and, while this court has, in various cases, objected to the use of such phrases as “burden of proof” and “preponderance. of evidence” in instructions to juries, their use is not necessarily reversible error.

Judge Marshall, in the case of Hawkins v. Grimes, 13 Ben. Monroe, 257, decided that “If upon the whole evidence, pro and con, it be doubtful whether the party be sane or not, then the presumption in favor of sanity may operate to decide the question otherwise in equipoise.”

In the case of Milton v. Hunter, 13 Bush, 163, Chief Justice Lindsay condemned an instruction which placed the burden of proof as to testamentary capacity upon the propounders, in an opinion in which he used almost the exact phrase used in the instruction complained of, saying: “When the propounders of a will have proved the due execution of a paper not irrational in its provisions, nor inconsistent in its structure, language or details with the sanity of the testator, the presumption of law makes out for them a prima facie case, and the burden of showing that the testator was not in fact of sound and disposing mind and memory at the time of the execution of the will is shifted upon the contestants.”

Judge Lindsay there held that the instructions under consideration in effect took from the propounders the benefit of the presumption of sanity. So in the case of Flood v. Pragoff, 79 Ky., 611, Judge Hines, delivering the opinion of the court, said: “In fact it is not ordinarily necessary that the propounders should show, as they did by attesting witnesses, that the testator was of sound mind, provided the statutory requirements were complied with, and there is nothing in the paper when presented which is irrational and inconsistent. Then the burden shifts to the contestants.”

And in the case of Fee v. Taylor, 83 Ky., 259, Judge Holt stated the law as follows: “When, however, the due execution of a paper, rational in its provisions and consistent in its details of language and structure, has been proven the propounder had made out a prima facie case, and the burden of showing that the testator was not of a sound and disposing mind when the writing was executed, shifts to the contestant. The third instruction given by the court conformed to this rule. ”

The exact question raised in the case at bar was made in the ease cited, and decided contrary to the contention of appellants.

M is claimed, however, that in Johnson v. Stivers, 95 Ky., 128, in an opinion by Judge Hazelrigg, the doctrine we have stated was modified by .saying: “The burden was on the propounders to show, by a preponderance of evidence, that the testatrix was of testamentary capacity, and on the contestants to show by a preponderance of testimony that she was unduly influenced or coerced, as defined in the instructions,” referring to the case of Fee v. Taylor, above cited, and other cases.

The reference to Fee v. Taylor, in support of the opinion, would clearly indicate that it was not intended to modify the doctrine there laid down, and that the statement that the burden as to testamentary capacity was on the propounders referred to the establishment of a prima facie case. And in Barlow v. Waters, (28 S. W. 785), this court, in another opinion by Judge Hazelrigg; confirms our conclusion as to what was meant by the opinion in Johnson v! Stivers by saying: “No. 7 places the burden of proof, as to the execution of the paper in the manner defined in No. 1, on the propounders, and the burden of showing undue influence or unsoundness of mind on the contestants. This conforms to the rule laid down by this court in Fee v. Taylor, 83 Ky., 259, and Johnson v. Stivers, (95 Ky., 130.)”

While we think it better practice to instruct the jury that if fthey believe from all the evidence the testator was of sound and disposing mind, etc., they should find accordingly, with, perhap-s, a statement of the presumption of sanity, yet the instruction given in this case is, by the established rule in the State, not reversible error.

Instruction No. 3, which begins by stating to the jury, almost in the language used by Judge Simpson in Howard v. Coke, 7 Ben. Monroe, 658, that “the soundness of mind referred to in the instructions is not necessarily such strength of mind as will enable aman to fairly contract with another at arms length, or of trafficking in property and managing ir .advantageously,” is also objected to as misleading, because a statement of a mere abstract proposition. The instruction, however, proceeds with a correct definition of thei capacity required to render a man mentally competent to make a will.

And in Wise v. Foote, 81 Ky., 10, a case frequently referred to in later opinions of this court upon this subject, almost the exact language of the instruction was used as a correct statement of the law. The latter part of this instruction is also complained of as by implication, stating to the jury that the testator owed duties to the devisees named in the paper. That part of the instruction is as follows: “But the capacity required to render a man mentally competent to make a will exists when the testator has will, mind and memory to sufficiently understand that he is selecting the person or persons whom he wishes to have his property , and to know his property and the natural objects of his bounty, and his duties to them and to the persons upon whom his property is bestowed by the! testamentary paper which he signs, and to make such disposition in accordance with a then settled purpose of his own.”

We do not think that this instruction was an instruction-that he owed duties either to the natural objects of his. bounty or to the persons upon whom he bestowed his proper ty, but that it left the jury to decide the question of mental capacity to know whether or not he owed them duties, and must have been so understood by the jury. This part of the instruction is also in great part a quotation from Wise v. Foote, mpm, to which this court referred with approval in Johnson v. Stivers, 95 Ky., saying: “The other instructions conformed to the law as laid down in Wise, &c. v. Foote, 81 Ky., 15.”

The remaining objection to this instruction is that it uses the words “in accordance with a then settled purpose of his own” as carrying with them the idea of less permanence and stability than the words “fixed purpose.” The words “fixed purpose of his own” have been often approved by this, court in this connection, but we do not think the words used were or could have been understood by the jury to have a materially different meaning from the language which is-more commonly made use of.

The objection is not well taken which is urged’ to the refusal of the court to permit appellants to. prove by appellee, Martha Bramel that on a former trial William Coleman, a devisee, testified to a certain conversation between the appellees, Martha and John W. Bramel. We can see no ground for the admission of such testimony. It was not an admission against interest by Coleman, but hearsay as to an admission against interest by Martha and John Bramel, nor do we think the other refusals to admit testimony were material.

Wherefore, the judgment is affirmed.  