17 Ky.L.Rptr. 871, 98 Ky. 253
Court of Appeals of Kentucky.
TURNER'S GUARDIAN et al. v. KING et al.
Nov. 14, 1895.
ACTION: Reversed.

Appeal from court of common pleas, Bell county.
"To be officially reported."
Contest of a will between P. K. Turner, by his guardian, and others, and J. C. King and others.
From a decree admitting the will to probate, the guardian appeals.

A paper purporting to be the will of Alvis Turner was admitted to probate in the Bell county court, and on an appeal to the circuit court the order of probate was sustained. The testator, at the time of his death, left his mother and two half-brothers surviving him; also, his grandmother and uncles and aunts. With one or more of his uncles he was not on friendly terms, but with his other relations no feeling of hostility existed. He left an estate valued at about $20,000, and, in the devise made, gave to his mother $25, to his half- brother (the appellant) $1,000, and the balance of his estate, save one or two small legacies, he gave to his cousin, Jefferson King, the appellee. The paper disposing of this estate was executed on the 4th of March, 1889, and in less than one month from that date the testator was wounded by one Burch. In this record is interwoven the history of a relentless warfare carried on by two brothers, who were the leaders of their respective clans,-Jack Turner, the father of the testator, of the one; and his brother, King Turner, of the other. This character of testimony was introduced by the propounders of the will for the purpose of showing the hostility of the father of the testator to members of his own family, and that this feeling had descended from the father to the son (the testator), whose dislike for his own kindred, by reason of their treatment of his father, relieved him from any natural obligation to provide for them in the final disposition of his estate. The father of Alvis (Jack Turner) married Miss Lane, and Alvis was the offspring of that marriage. He killed Lane, the father of his wife, in the year 1872; and, shortly after, Turner was shot from the window of an hotel kept by the husband of a sister of Turner's wife. It is then said that Alvis (the testator), avenging his father's death, slew one of the opposing clans, and was then killed by one Burch; and the appellee King, who had been the fast friend of Alvis, took the life of Burch. The mother of Alvis, shortly after her father had been killed, left her husband, or he abandoned her, and in a few years she left this state for the state of Missouri, and there married a man by the name of Lincogle. She took with her to Missouri her daughter, who lived until she was 17 years of age, and died shortly before the paper in controversy was executed.

In the examination of this record, we find but two issues presented in the jury by the instructions given. One of those issues is: Was the paper said to be the will of Alvis signed by him? If so, was he at the time 21 years of age? There was a mass of testimony on each side as to the age of Alvis when the paper was signed, and this seems to have been the issue to which the attention of the court and jury was called on the trial below. It is insisted by counsel for the contestants in this court that the paper was procured by the exercise of an improper influence over the testator by the appellee, who is the principal devisee; and yet no instruction was asked by the contestants upon that theory, and the case seems to have gone to the jury on the formal instruction as to the signing of the paper by the testator, and its attestation by the subscribing witnesses in his presence and at his request, and an instruction based on testimony conducing to show that the testator was a minor when the paper was signed. The two instructions given are unobjectionable, and, if the contestants desired to present the question of undue influence, an instruction should have been offered on that branch of the case, as it was not the duty of the trial court to raise the issue for them, although the testimony may have warranted the consideration of such an issue by the jury. In a criminal case it is the duty of the court to give the whole law of the case; but in a civil action the court is not required, unless called on to do so, to give instructions embracing any theory of the plaintiff's cause of action that is or may be supported by his testimony or that of the defense; and, if the instructions given are otherwise unobjectionable, the fact the court has omitted to give to the jury every instruction authorized affords no ground for a reversal. We can therefore look only to the question raised as to the competency of certain testimony considered by the jury, and to which objections and exceptions were made and taken at the time the witnesses were permitted to answer.

On the issue as to the disability of infancy on the part of the testator when this paper was signed, the witnesses were numerous, and the testimony very conflicting. If the birth of Alvis was in the year 1867, he was of full age at the date of the paper. If born in the year 1868, he was under age, and could make no disposition of his estate by last will and testament. The mother of Alvis (the testator) testifies that he was born in the year 1868, detailing facts and circumstances sustaining the verity of her statements; and at the same time she is corroborated by the testimony of others, who were her neighbors, and who detail facts upon which they base their knowledge of testator's age; and, on the other hand, witnesses for the propounders made statements and detailed facts as to the birth of Alvis equally as convincing; and while a jury, in weighing the testimony, might concede to the mother a more accurate knowledge as to the date of such an event, it is argued that the incompetent and irrelevant testimony permitted to go to the jury had a tendency to affect the credibility of the mother's statement, and to otherwise influence the jury in sustaining the paper as the last will of her son. It is apparent that the statements of one or more witnesses to the effect that, some 16 years or more before they were called to testify, the mother of Alvis was regarded as an unchaste woman, were calculated to lessen, if not to destroy, her testimony. This court has often held that, in impeaching the character of a witness, the party seeking to destroy his testimony is not confined to the character of the witness for truth, but may show that his general moral character is bad; and, in the attack made, his character and standing may be proven, not only at the time he is called to testify, but prior to that time. The inquiry may well be made as to the extent to which this rule is to be carried. Is it to be said that the vices and immoralities of youth are to follow the witness as long as he or she may live, or should it not be confined to a period so near the time when the testimony is offered to impeach the character of the witness as would induce the rational belief that some bad reputation for morals still exists? Is the mother's character for truth to be lessened or destroyed because witnesses say that, 16 years before they are called to testify, she was regarded as an unchaste woman,-a period almost as remote from the time of this trial as the birth of the testator, her son, whose right to make a will is now involved? We think not. What is the general moral character of the witness? is the question to be propounded; and the answer that she was unchaste 16 years ago is not responsive to the question, and should have been excluded from the jury.

The son had visited his mother shortly before this paper was executed. The mother had raised his sister until she was 16 or 17 years of age, and the causes of the separation of the mother of Alvis from his father, whether by reason of the latter's killing her father, or by reason of the want of virtue on the part of the wife, are facts not relevant to the issue between these parties. Nor was it competent to place before the jury the history of these two warlike clans, for the purpose of showing a reason or motive on the part of the testator to provide more liberally for his cousin, the appellee, than for those more nearly allied to him. His hostility to one or more of his uncles, produced by the feuds between his father and his father's brothers, ought not to have influenced the jury in their finding. These feuds began when the testator was not exceeding two or three years of age. His uncles are not parties to the record, or claiming to be entitled to any part of this estate. The only party to this appeal or that from the county court is the appellant, who is the half-brother of the testator, children by the same father; and how the bad feeling towards his uncles prompted the execution of the paper in controversy so as to affect the half-brother, on any issue made or that could have been made in this case, we cannot well see. His friendship or affection for the appellee, shown by acts or declarations of the testator, was competent; but the fact of the appellee's belonging to the one clan or the other, or the history of the many battles between the contending parties on Yellow creek, are matters foreign to this controversy, and the whole should be eliminated from this case, as well as the proof of the hostility on the part of the testator's father towards his brothers and sisters. Not one of them is a claimant or party; and if admitted for the purpose of showing that his failure to provide for these uncles in preference to his cousin, the appellee, resulted from his bad blood, it is conceded that the aunts and other uncles of the testator were friendly to both father and son.

This case was tried below upon testimony, much of it, irrelevant and incompetent, and its admission calculated to direct the attention of jurors to immaterial issues, made upon facts having nothing to do with this case. In the attempt to establish the age of the testator, there was offered as evidence the Family Bible of the father of the testator's mother. This was incompetent, and while it might otherwise be introduced as evidence, the original being now before us, it is manifest that so much of the writing as attempts to fix the births of Turner's children is not a part of the family record of his grandfather, or that of testator's immediate family. It appears that there was no objection to this testimony, but it is argued here that it was incompetent, and, as the case must go back, it is proper to pass on that question. Whether offered by the one party or the other, it should be excluded if an objection is interposed.

There was an allowance made to the administrator to pay counsel fees for the propounders of the will; and as the administrator is not a party in interest, other than as the personal representative, and there being no supersedeas, he has, doubtless, made the payment; but, if unpaid, we are not disposed to disturb that order, as the court, in its discretion, could determine and direct the administrator as to the sum to be paid by him for the services rendered.

The judgment establishing the paper as the will of Alvis Turner is reversed, and remanded, with directions to grant a new trial, and for proceedings consistent with this opinion.

Ky.App. 1895.
TURNER'S GUARDIAN et al. v. KING et al.
32 S.W. 941, 17 Ky.L.Rptr. 871, 98 Ky. 253


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