O'Bryan v. Schmetzer's Ex'r (Maxwell)

177 S.W.2d 381, 296 Ky. 425, 1944 Ky. LEXIS 552

Opinion

Opinion of the Court by

Judge Tilford

Affirming.

This is an appeal from a judgment entered upon the verdict of a jury finding the paper probated as the will of L. W. Schmetzer to be, in fact, Ms will.

The sole ground urged for a reversal is that the court erred in instructing the jury that “a person is of sound mind in making a will if at the time of its execution he has such mental capacity as to enable him to know the natural objects of Ms bounty, Ms obligation to them, the character and value of Ms estate, and dispose of it according to a fixed purpose of Ms own.” The specific complaint is that the court omitted from the instruction the phrase “and to make a rational survey of his estate.” It is obvious that if a testator has sufficient mental capacity to know the character and value of his estate and dispose of it according to a fixed purpose of Ms own, he has sufficient mental capacity to make a rational survey of it. Furthermore, the instruction in the form given has several times been approved by this court. Watson’s Ex’r v. Watson et al., 137 Ky. 25, 121 S. W. 626; Wood v. Rigg, 152 Ky. 242, 153 S. W. 214; Hall et al. v. Hall, 153 Ky. 379, 155 S. W. 755. See also Stanley’s Instructions to Juries, Form 749.

Judgment affirmed.