#### Mahaffey *v.*Mahaffey.

Opinion delivered October 17, 1927.

1. Wills — testamentary capacity. — In a contest of a will on the ground that the testator did not possess testamentary capacity, evidence *held*to sustain a finding in favor of the will, notwithstanding testator was more than 80 years old, was very feeble, and at times had delusions.

2. Wills — admissibility of evidence. — In a will contest on the ground of testamentary incapacity, it was not "error to admit a letter written for testator by contestant’s wife, which indicated the testator’s intelligent appreciation of his affairs, where it was shown that testator could not read or write, and that the letter was written for him in response to a letter from eontestee.

Appeal from Randolph Circuit Court; *John G. Ashley,*Judge;

affirmed.

*1154*John L. Bleclsoe, J. W. Meeks,*for appellant.

*Walter L. Pope,*for appellee.

Smith., J.

This appeal involves the question of the testamentary capacity of J. E. Mahaffey to make a will, and from a verdict and judgment sustaining’ the will the contestants have appealed, and, for a reversal of the judgment, insist that the undisputed testimony shows the lack of testamentary capacity, and that error was committed in permitting the introduction of a certain letter over the objection of the contestants. No complaint is made of the instructions under which the case was submitted to the jury.

J. E. Mahaffey, the testator, was married three times, and:the contestants here are the children; by'his first marriage, and the contestee is the only child of his second marriage. The third wife bdre testator no children. Under tlie terms- of the will the testator devised to the children of his first wife one hundred dollars each. To L. E. Mahaffey, the child by the second wife, there was devised a certain farm, and to the..third wife there was devised'another farm-for life,-with-'the -rem'ai-nder to L. E. ¡Mahaffey:" >'¡ v>dj h d Urn /<! ;i

The testimony shows that the money with which the farm was purchased which was devised to L. E. Mehaffey' was derived from the sale of property owned by his mother. *. cah-ilu t If , \ m'/ V.*

The testator-h^dj^oyppieidy liy^d p^r.jQhio, and the first wife’s'children continued to live in that State, but the d'esfeték’^e’híóNed1 fd thi§r'!S'tateffáfídr‘re’sided! líé'r'e at ’rh *w.,a;'!U;\rf*M‘¡":*

, .*»:• ,.op ÍS to the effect that’ the testator ivas m.#re than.-eightyf-years pjduhn?l'.-tfi# hi-S health, ymsippor,, ariduhis.jneni^liby/had declined-.un-til ibe had then&infbof a'jmer.e*.ohild,'’and^enter-tainédí'the^delnsi'OU'thatsh'cwasdieih'g^pU'rs'üdd-'by-’peT'Sons IfhPpvérd-hfidída^óiiB^dcÍPdHMpPT’kBukTidbMicpt There bore date one day after the date of the will, m which th'e'1wfitter''féféí,'í',‘edí :to'ithe'iD’odr,‘c'©hdii>i.dil'df'{ti§i-fa{her’s health, and the delusion under whiohUVé'^abo-fedpU- .v/>’

*1155¡; ObiMinff effepiptestee’ thqd^j^paoft^,?^ toftlie effect #xcep t; that ¿he rwM wjOTí Ipebfe,, ¡a^d ^jfejpeff tad ,-j /$$$%’ f during which he had delusions. The contestee testified hJa^t-Jie ^9(S ajLQjt present, when tj^e yálfwftn-íPyep'ared;, and did mphknpw its.provi^ions ¡antif nf^er; hipffaffierts' death; apd tlmt-the wifi Tpg$ left i# tjipiPjassespiqn.el.ithe.sprivpn.er who.prepared,it?,?/ .:■» ;. .,■;.> ;j.,j ..¡ü Mo-r// vffi.-mNff

i[-.,,.{. A.'.P'a'feoribing!líwi.:tiies:S;.;tp tfeei will testified, (ffnff.lm iieín'ember,eGl;the.’'ci'rc9ms;tnnqes,of itgf e^ecutipn,, ancl, tlrat he *taí'hedrWith•*the testator.,pn.that ¡oeeasipny ¡andfdbÚPg that day,; and jfcb# h-,e johserypd,. nothing p^rpajg wiffirfhe testator,-, except ,that,]ie. appe.ar§d' to/he Ne-yyifeebleffrqni his.- iadynpced,a,ge.i):>iQthpr,1p¥j.ti3Leppepitestified, that -tjiey had; noticed/nothing, ab.o uf-the, de^ntopj tp jndigate £$$$}? of.mentaíliitjn.excqptppidydlieuííOhteaess/.Qfi-Ql’d.jageM-'f^.,!;

,-r.v.Á¡physician wl^o had.Jqtnwn thG^qs-tatorffpr twenty - pne.years,, and who ha;d.;pres.9(cib.odfi.pA’-.hihiifinr-seypral occasions, testified that h(£rf.;M.ahaffey:'vyasipuff^ring;;fior!3 cystitis due to old age, and that he had talked with Mr. Mahaffey on many occasions, and regarded him as a rational man, although a feeble one. This witness further testified that Mr. Mahaffey, who lived in the country, always came to see hint when in.,fq)vn, either professionally or socially, and that Mr! Mahaffey paid him a social visit on the day the will wáá executed, aiidthát he did not observe, anything wrong with his-mind at that time. .The wilhwas dated:February 38, 1923, and the-testator died on October 17, 1925.• - ■ ' ;

Under this testimony we' cannot say that the verdict of the jury upholding, the will1 is. not supported by sufficient, testimony.', • ,s ...

On July 26, 1923, the. testator was visiting the home of K. W. Mahaffey, one -of the; contestants, who lived in Ohio. Oil the datemiehtiohed'Jenny Mahaffey, the wife ,bf K. W. Mahaffey, wrote- 'ap'pplíéé _ ar lettér, !or rather .two. letters in one, tile first .part .being .signed by K. W. Mahaffey, and the last was signed “.Father.” This-last letter-contained questions about, the, crops, and the garden, and gave certain directions about a heifer anchtwo ponies *1156which the testator owned. This letter indicated an intelligent appreciation of the affairs of the testator at his home. The admission of this letter is assigned as error.

It was testified by L. E. Mahaffey and not denied by K. W. Mahaffey, who also testified as a witness, that their father conld not read or write, and that Mrs. K. W. Mahaffey wrote the letters for J. E. Mahaffey when he was in her home, and that Mrs. Mahaffey conducted such correspondence as her husband, K. W. Mahaffey, had. The letter in question was. written to L. E. Mahaffey in response to a letter from him, was written by the person who wrote for K. W. MaHaffey, and the latter did not deny any of the statements contained in the letter, nor did he deny his wife’s authority to write it. We conclude therefore there was no error in the admission of the letter.

We find no error in the record, and, as the testimony is sufficient to support the verdict, the judgment must be affirmed, and it is so ordered.