The Breckenridge news. (Cloverport, Ky.) 1876-1955, 1919-12-24
EXCERPTS FROM OPINION
OF COURT OF APPEALS
IN FRAIzE WILL CASE


(meaning the contestants witnesses)
are so disconnected and many OF
them so irrevelent as to reflect little
light upon the real mental condition
of Mr.. Fraize. Their opinions,
therefore, based upon these Proba-
tiveless facts are Untitled to very little
weight"
Commenting upon the testimony
adduced by Mrs. Fraize. the Court
said:
The executrix and sole devisee,
Mrs. Fraize called about twenty wit
nesses, among them DIR. Clark a per-
| sonal physician of Mr.. Fraize, the
other, aside from the widow, Mrs.
Cornelia w. Fraize were businessmen
J and women who were intimately as
| ISOLATED with Mr.. Fraize for some
years next before his death, and who
we're in the best position of all living
people to know the actual mental con-
dition of the testator at the time, as
well as before and after the making
OF the will and codicil Among this
list is the personal attorney for Mr..
Fraize prepared both of the tes-
tamentary papers and who frequently
consulted with his client concerning
business matters along about the time
of the making of the papers and for
some time before. This attorney, Mr..
Claude Mercer, says that he prepared
the will at the Offices of Mr.. Fraize
at Cloverport, and that il was dictated
by Mr.. Fraize. These are his words:
Mr.. Fraize told me what he want
ed done with his property. He said
he wanted his wife and son, Fred, to
have it all and il one died before he
died (Fraize) the survivor should get
it all.
The Court then commented upon
the testimony of Mr.. A. B. Skillman,
Mr.. William H. Bowmer and Miss
Pauline Norman, all of whom stated
their business relations with the tes-
tator and all of whom stated that I'M
questionably Mr. Fraize possessed
legal testamentary capacity. The
court also, quoted at length from the
testimony of DIR. Clark, who stated
positively that Mr.. Fraize, for man
of his age (being then about IS
years old was possessed of an un-
usual strong and vigorous mentality.
Continuing Further the Court Said:
"Old age along does not disqualify
one from disposing of his property by
will No court has ever so held, yet
contestants have little else to intitle
their cause to consideration than the
extreme old age of the testator and
his defective hearing and eyesight, adj
ded to his decrepid physical. condi-
ton which is largely due to his brok-
en- hip or limbs. As one grows older
his sensibilities are dulled, his eye
sight dimmed and his hearing less
acute, but this is not mental unsound-
ness nor are such facts alone entitled
to be considered as tending to prove
testamentary incapacity."
His fortune of something more
than $1O0,O0000 was the result of his
own intelligence, industry and BUSH .
ness astuteness. He had the reputa-
ton of being and was regarded by the |.
citizenship of Cloverport as one of the !
best, if not the best. business man in !
that city for about one-half century. |
The people with whom he dealt had
no doubt as to his ability to manage
and control his affairs. and they all
looked upon him as man of unusual
business acumen. OF course, in his last
days he was so enfeebled physically
and embarrassed by the loss of his
sight and hearing that he could have
but little intercourse with the public
generally But to his intimate friends
and close business associates he dis
plaved in conversation and business /
much of the old skill and adroitness
which had characterized his business
life and easily made him the leader in
his line in the county"
Here the will is entirely rational
on its face. The testator had no
or grandchildren. His wife
had been his life long companion,
faithful and true. A large part of their
early fortune came from her fathers
estate. Fraize used her money as his
own and mixed and mingled it with
his estate"
"To whom could he have given his
to have better shown his
mental soundness than to his wife and
SOM"
The Court then comments that after
the death of his son, Mr.. Fraize sent
for the same attorney, Mr.. Mercer,
who had prepared the will in April,
1919, and stated that he desired to
make codicil TO his will. The attor-
ney suggested to him that no change
in the will was necessary because the
original will provided that in case of
the death of either his son or wife