9 Ky.L.Rptr. 915
Court of Appeals of Kentucky.
HOSKINS et al. v. HOSKINS et al.
March 3, 1888.
ACTION: Reversed

Appeal from circuit court, Knox county.
John Hoskins and others offered the will of their father, Levi Hoskins, for probate in Knox county court, where an order admitting it to probate was made.
Thereupon the appellees took an appeal to the Knox circuit court, and the order of the county court was reversed; hence the appellants prosecute this appeal.

This case originated in the county court of Knox, where the will of Levi Hoskins was offered for probate. The instrument was properly proven in that court as the last will of the testator, and from the order of probate an appeal was prosecuted to the circuit court, and a trial by jury waived, resulting in a judgment against the validity of the paper. The will was assailed for the want of mental capacity on the part of Levi Hoskins at the date of its execution, and the exercise of an improper influence over him by one of his sons. It was executed by the testator in October, 1863, and admitted to probate in the county court in January, 1876. How long he lived after its execution does not appear, but nearly 13 years elapsed from its execution to the time of probate, and the presumption is that the testator lived many years after he executed the paper.

After a careful consideration of the record, we conclude there is an entire absence of evidence showing either a want of mind to execute the will, or an undue influence over the testator by his sons or others, at the time it was executed. In fact, we have seldom seen in any record involving similar questions a stronger case of mental capacity made out for a testator than appears, from the testimony, to have existed in this case with reference to the capacity of Levi Hoskins. Attesting witnesses, who, from their statements in general and in detail, exhibit more than ordinary intelligence, and who had known the testator for many years,--one of them writing his will,--have no doubt as to his mental condition when he signed the paper, and that he fully comprehended the nature of the solemn act he was then executing. Its contents, they both say, was the offspring of his own mind, and in furtherance of a purpose contemplated by him many years prior to its execution. He had spoken on two several occasions to the draughtsman of the will of his intention to execute such a paper; and to some of his neighbors who lived near him, and were on intimate and friendly relations with him, he had detailed more than once the manner in which he intended to dispose of his estate. The whole testimony in favor of the validity of the paper sustains the mental capacity of the testator to comprehend fully the character of his estate, and his obligations to his offspring in making the distribution between them. The only point raised upon which a suspicion of mental imbecility could be based was the failure of the testator to provide for his wife; but we think it is apparent that he must have known that she would be entitled to her distributive share as widow, as well as her dower, or that his children would provide for her as long as she lived. The widow renounced the provisions of the will, and there is no contest over her rights in the premises. The testimony against the will by one witness was to the effect that the aged devisor was in fear of the rebels; that they had camped, with Indians, near his house; that he was excited and crying, no doubt from fear of the Indians, or the still greater fear that they might deprive him of his property. Another witness says that he was present when both the daughter of the testator and her husband were lying dead at the same time. There was some discussion as to the place of burial; and the old man, being present, seemed disturbed and prostrated. Still another witness said he was feeble in mind,--talked strange; and another, that he purchased some goods, and told the witness to take the change out of the money handed him, without asking the price; that he handed back the change, and nothing more was said. No act of the testator, or conversation with him, is detailed by a single witness evidencing even a feeble intellect; but there is a futile effort to destroy the validity of the paper made by this testator, upon the testimony to the effect that he looked strange, was excited when the rebels came in, and was also seen talking privately with his two sons on one occasion. The testator was advanced in years, and we have no doubt his mental vigor was somewhat impaired; but that he was wanting in mental power to execute the paper in controversy is not established by any fact or circumstance in the entire record.

The judgment below, reversing the order of probate, is reversed, and the cause remanded, with directions to award a new trial, and for proceedings consistent with this opinion.

Ky.App. 1888.
HOSKINS et al. v. HOSKINS et al.
7 S.W. 546, 9 Ky.L.Rptr. 915


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