#### Hugh Spears et al *v.*Robert A. Sale et al.

Wills — Antipathy Toward Children — Mental Delusion — Verdict—Judgment.

The antipathy which the deceased indulged toward his children, without cause, and out of which he could not be reasoned, indicates mental delusion, which resulted in the production of the document now sought to established as his will and if this conclusion was more doubtful than it is,

' it might be made preponderant by the verdict of a jury of neighbors, confirmed by a judgment of the circuit court.

APPEAL BROM WOODBORD CIRCUIT COUR.T.

November 25, 1867.

Opinion oe the Court by

Judge Peters :

A writing purporting to be tbe last will and testament of Edmund Munday, deceased, was offered to tbe Woodford County Court for probate. And was rejected. Tbe propounders then appealed to tbe circuit court, where upon tbe trial of tbe issue by a jury said document was found not to be tbe last will, and testament of said Munday, and a judgment having been rendered by tbe court in conformity to tbe verdict of tbe jury, and a new trial refused, tbe propounders have appealed to this court.

Tbe contested paper was written and acknowledged in Versailles in April, 1866, to which place decedent bad gone for tbe purpose of having it prepared, and publishing it; he was then about 66 years of age, bad six children living, and a grand-daughter, tbe child of a deceased son, bis wife was also living; be died in July following possessed, as is proved, of an estate valued at $8,000, tbe most valuable part of which was bis homestead, á farm of some 220 acres worth perhaps thirty dollars per acre. It does not appear that be had advanced any of bis children, or bis grand-child.

He bad three daughters two of whom were married, tbe other a single woman, of some 25 years of age or more as tbe. evidence conduces to show, tbe grand-child about 4 years of age, tbe sons were all over 21 years of age; but whether married or not does not appear.

Tbe provisions of tbe testamentary document are short and simple, in it decedent gives to bis wife tbe one-third of all bis *151estate for life and remainder to bis daughter Mrs. Spear, and bis two sons Eobert and John. To bis daughters Mrs. Sale and Mrs. S. E. Munday be gives $200 each, to bis son Eeuben $50. And to bis grand-daughter Elizabeth N. Munday $700 and the residue of his estate to Mrs. Spear and Eobert and John Munday.

The two- subscribing witnesses to the instrument, one of whom was the draftsman, and the other a brother of decedent, and both intelligent and respectable gentlemen, depose that at the time of its acknowledgement decedent was of sound mind and competent to make a rational and vaild disposition of bis property by will, and perhaps all the witnesses who testified in the case, except bis wife, say be was competent to transact ordinary business, and to manage bis own affairs with as much skill and judgment as men of common sense; but his wife proved that the last year of bis life be managed bis business badly, and spent about $1,600 dollars foolishly.

To this evidence there are opposing facts which will be now noticed. Eor a number of years before bis death decedent bad been afflicted with disease of the kidneys, bis disease bad become chronic and continued to increase in violence until it terminated bis life. Erom physical suffering and without hope of recovery be was melancholy and desponding and in temper as the disease progressed be became more impatient and irascible, especially towards bis own children, and some of the witnesses prove that bis malady and the imaginary disobedience and unfilial conduct of bis children were bis chief, if not constant themes of conversation. With them be bad frequent difficulties, sometimes with one and then another in which bis wife testified she thoiight bis conduct was unreasonable, and sometimes irrational, often provoking them, never kind to. them, and bis aversion towards them increased as bis health grew worse.

At one time he charged Sale, the husband of his daughter Lucy with having marked his hogs, invited those present to go with him to the lot where the hogs were to show by an examination of them that they were all found to be in his own mark, he left without saying any thing more. At another time he charged Sale with *“tutoring”*his sons Eeuben and John (in the language of the witness) to dislike their father, for which there was as little foundation as there was- for accusing him of marking his hogs. John was examined as a witness, and proves no such thing ever occurred, and although a favored beneficiary in the contested *152document, be says be is opposed to it, because be did not tbink bis father could do justice amongst bis children on account of bis prejudices, be talked bard of them, was at sometimes prejudiced against all of them except bis sister Susan (Mrs. Spear) and never at the same time friendly with all of thém.

*T. McCleodj Bech, for appellants.*

*Porter &*Greathouse, *Huston, for appellees.*

To bis daughter Sarah be was very hostile, and although she approached him more than once to effect a reconciliation, the last time, only a few days before bis death and while she was doing all she could for bis comfort, but be turned from'her relentless and died unreconciled to her, and her offense as explained by bis wife was rather imaginary than real, and certainly did not merit the unforgiving antipathy manifested towards her by her father to the last. Other facts disclosed by the evidence might be referred to showing his displeasure towards' others of his children at different times, but less violent and of shorter duration and generally accompanied with threats of disinheritance, though a recital of them is deemed unnecessary, it may not be improper however to mention the fact that he had previously published-, a paper as his will different in its provisions, and which he caused to be destroyed and had the contested paper prepared in its place, on account of a difficulty he had with his son Beuben shortly before its date.

The antipathy which the deceased indulged towards his children without cause, ■ or if any existed, slight and trivial and .out of which he could, not be reasoned, indicates mental delusion, which the evidence conduces to show resulted in the production of the testamentary document now sought to be established as his will. But which cannot according to the weight of authority be done.

Bedfield on the Law of Wills, pp. 72-3; 84-5-6-7. Johnson vs. Moore’s heirs, 1 Litt., 370.

And as was said by this court in Harrel, &c., vs. Harrell, &c., 1 Duv., 203, this conclusion were it more doubtful than it is, might be made preponderant by the verdict of a ju'ry of neighbors confirmed by the judgment of the circuit court. And in this case by the judgment also of the county court.

Wherefore it is adjudged by this court that the writing in question is not the *Will*of Edmund Munday and the cause is remanded to the court below with instructions to enter this mandate and certify the same to the county court of Woodford with direction that the judgment of that court be affirmed. . s e