Case 47 — Proceeding fob Pbobate of Will

Nov. 1.

#### Wilson v. Hays’ Exr.

APPEAL FROM BULLITT CIRCUIT COURT.

Judgment for Propounders — Contestant Appeals.

Affirmed.

Wills — Failure to Mention Codicil in Verdict — Harmless Error— Testimony in Rebuttal — Testamentary Capacity — Construction of Will — Failure of Testator to Dispose of Entire Estate.

Held: 1. Where a will and two codicils were written on the same paper, it was not necessary to mention the codicils separately in a verdict sustaining the will.

?. Rejection of testimony, which was merely cumulative, and not of such character as would probably have changed the result of the trial, was harmless error.

3. Under Civil Code Practice, section 606, sub-section 8, as amended by Act February, 1898, providing that “ a party may be examined as if under cross-examination at the instance of the adverse party, either orally or by deposition, as any other witness; hut the party calling for such examination shall not be concluded thereby, but may rebut it by counter testimony,” — it was not an abuse of discretion to refuse to permit the contestant of a will to testify in rebuttal as to admissions of the propounder, who was not introduced as a witness for himself, as she might have called him, and subjected him to cross-examination on the subject, and then have contradicted him.

4. In a will contest, the court properly instructed .the jury that "soundness of mind in mailing a will is for the testator to have *322such mental capacity as to enable bim to know the objects of Ms bounty, the character and value of his estate, and to make a rational survey of his estate, and dispose of it according to a fixed purpose of his own;” it never being proper to submit to the jury the question of rational distribution of the testator’s estate.

5. Under a devise of real estate to testator’s widow for life;, and at her death to testator’s daughter, but, in the event the daughter should die without issue living, then to her heirs at law, the daughter, if living at the death of the widow, will take the land rn fee.

6. The fact that testator left a considerable part of Ms estate un-devised did not furnish ground for rejecting Ms will, as he probably intended that his debts should be paid out of that part of his .estate.

W. S. PRYOR, BENNETT H. YOUNG, WALLACE *&*HARRIS and CHAS. CARROLL, for appellant.

JAS. C. POSTON and PAIRLEIGH, STRAUS & EAGLES, fob ap-pellee.

(No briefs in record.)

Opinion op the court by

JUDGE WHITE

Affirming.

•This is a contest over the probal ion of the will of W. H. Hays, who died in Bullitt county in June, 1897. The .instrument is dated in September, 1896, and contains two codicils, the last one dated in March, 1897. By the judgment of the county court the will was ordered to probate. On the appeal to the circuit court, the jury returned a verdict for the paper as the will of W. H. Hays, deceased. The verdict reads: “We of the jury find the paper marked ‘A’ to be the last will and testament of W. H. Hays, deceased.” From that judgment of the circuit court probating the will this appeal is prosecuted.

Appellant insists as grounds for reversal (1) that the verdict is not supported by the evidence; (2) that it is not responsive, does not refer to the codicils at all, or find one way or the other respecting codicils; (8) errors of the court in refusing to permit appellant to introduce certain *323testimony which was offered; (4) error in the instruction given.

As to the first objection, that the verdict is not sustained by the evidence, we are of opinion that this assignment of error is not well taken. There is .considerable testimony on both sides of the question. We are not prepared to cay that the verdict is flagrantly against the evidence, and unless we could so say the universal rule of this court is not to disturb the verdict. The proof shows that decedent, at his death, was upwards of 80 years' old, and that in December, 1895, he had a stroke of paralysis, which was followed in May, 1890, by a second stroke; yet it is shown that after this second attack he improved, and was able to go to Louisville, and took a great interest in the national political campaign of that year. Indeed, it is insisted by one witness, a physician, that because this old gentleman, who had always» been a Democrat, espoused the cause of its regular party nominee, and advocated the principles of the party platform of that year (“free silver”), it'Was evidence of his unbalanced mental condition. This is given as an example of the testimony to show that the question of testator's menial condition was fully and exhaustively investigated by both sides. The testator’s every act seems to have been proven before the jury, and With this evidence before them, we do not feel authorized to say their verdict was against the evidence.

The will and two codicils were written on the same paper. It seems that the verdict finding that the paper is the last will and testament of W. IT. Hays is sufficiently responsive. The codicils were proven just as the body of the will was proven, and, being all on one paper, there was no necessity of separate verdicts as to the codicils *324or a separate metioning of the codicils in the verdict. They are a part of the will.

The court refused to permit a witness for appellant to state that, on an occasion prior to tjhe second stroke of paralysis of, W. H. Hays, the witness heard Mrs. Harriet P. Hays, wife of W. H. Hays, and a beneficiary under the will, say that the mind of her husband was not what it had been, and related an incident to fortify the statement. We are of opinion that the refusal of this erddence is not such error as will justify a reversal. It is cumulative merely, and is not of such character as would necessarily or probably have changed the result of the trial. It was a statement of the wife, made some months before the will was written, and, if taken to be literally true, would not' mean he was incompetent to make a will. The mind of the testator at eighty-four evidently was not what it once was, yet it may have been sufficient to enable him to make a valid and legal will, disposing of his estate rationally and according to a fixed ' purpose of his own.

It is also insisted that appellant should have been permitted to state, When called in rebuttal, that her brother*, a devisee under the will, had stated that his father, testator, was incompetent to make a will. Coming, as it did, in rebuttal, the admissibility of this evidence was in the discretion of the court, and we can not s'ay that there was an abuse of discretion. It may be, as counsel contends, that they were expecting the brother to be introduced as a witness, when they would cross-examine him on that point, and contradict him if he denied it, but that is not sufficient excuse. By sub-section 8 of section 606 of the Civil Code of Practice, as amended by the act of February,. 1898 (with an emergency), it is provided: “A party *325may be examined as if under cross-examination ait the instance of the adverse party, either orally or by deposition, as any other witness; but the party calling for such examination shall not be concluded thereby, but may rebut it by counter testimony.” Under this section appellant need not have waited for the brother to have been called as a witness, but may have called him, and1 subjected him to cross-examination on that subject, and then, if desired, contradict him. With this privilege open to appellant, it was not an abuse of discretion to refuse to permit her, on rebuttal, to give testimony that she might have tesiified in chief, or have rendered it competent in rebuttal by introducing the brother, who was a propounder of the will, and a party to the action.

The court gave to the jury instruction No. 3, as follows: “According to law, soundness of mind in making a will is for the testator to. have such mental capacity as to enable him to know the objects of his bounty, the character and value of his estate, and to make a rational survey of his estate, and dispose of it according to a fixed purpose of his own.” It is insisted that this wa:s error, because the jury were not permitted or directed to pass on the question as to whether the disposition made by the testator was rational, according to a fixed purpose of his own. This identical instruction was approved in the case of King v. King (Ky.) 42 S. W., 347, and it meets our approval now. The instruction submits to the jury the propositions: Did the testator know the objects of his bounty, the character and value of his whole estate, miake a rational survey of the estate as a whole, 'and did he dispose of it according to a fixed purpose of his own? As said in the case of Newcomb’s Ex’r v. Newcomb, 96 Ky., 120. (27 S. W., 997): The manner of the disposition was *326not to 'be regarded as rational, according to the opinion of the jury, but the disposition was to be in a rational manner, according to the fixed purpose of the testator.” If the testator is unable to carry out his fixed purpose, or to express it rationally o>r intelligibly, the will will fail, because no court can malte a will. If the testator attempts to do by 'his will a fijiing prohibited by law, as, for example, create an estate tail, his effort will be futile, and the verdict of a jury can not aid him. If the will be unintelligible, it will fail, because the court can not make a will. So the question of rational disposition of the estate should never be submitted to the jury.

It is insisted that in the case at bar the testator devised to his only daughter, appellant, an estate charged to her at $7,000, when in fact it is only worth about $200. The clause in question is -as follows: “I give and devise to my beloved wife, for and -during her natural life, the house and improvements on which we live, including all that part of the home place south of line running about east and west with the line of fence .on the south side of the field called the ‘Blue-Grass Field,’ and one hundred and fifty acres called the ‘I-’each Orchard Tract,’ and at her death to my daughter Kate Wilson, but in the event she should die without having lawful issue of hete body living, I then said lands shall descend to my iheirs at law. Said lands shall be charged to her at the sum of seven thousand dollars.” It is insisted by counsel in brief that under this clause appellant, Kate Wilson, is devised an estate, by reason of the conditions therein, of only $200 in value, while it is to be charged to her at $7,000. We do not so construe this article. It provides a life estate to the- wife, and, if Kate Wilson be living at the' death of the wife, she gets the land in fee. The land goes to the heirs -at law *327¡only in the event that Kate Wilson dies before the wife, and leaves no issue of her body.

It is insisted that, as testator left considerable estate undevised, this is another reason why the’ parper should not be probated, or, rather, why the jury should have found against the paper. It appears that testator was in debt some, and it was his intention, no doubt, to leave some property undisposed of to pay his debts; and then, again, by valuing the estate devised, he seems to have realized there would or might be a surplus after the payment .of his debts, and out of this surplus his children would, if possible, be made equal by the law. We are of opinion that the will rationally disposed of testator’s estate, and from thé evidence the jury were fully authorized to find, as they did, that he tos of sound mind, and that the paper was the last will of W. EL Hays, deceased. There appearing no substantial error to the prejudice of appellant, the judgment is affirmed.

Chief-Justice Hazelrigg and Judges Paynter, Guffy, Du« •Relie and Burnam concur. Judge Hobson not sitting.