Russell v. John O. Russell's

38 S.W.2d 456, 238 Ky. 599, 1931 Ky. LEXIS 285

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: May 1, 1931
• Status: Published

Opinion

Opinion of the Court by

Drury, Commissioner—

Affirming.

In a contest of the will of John O. Bussell, the propounders were successful and the contestants have appealed.

This is the second appeal of this case. See opinion on former appeal 233 Ky. 105, 25 S. W. (2d) 54, for a statement of the facts.

Fifty-five witnesses who testified upon this hearing had testified before, and 12 witnesses who testified on the former hearing didn’t testify this time, but 26 new ones were heard, so that this record consists of the evidence of 81 witnesses and is rather voluminous. "While each side strengthened its evidence somewhat, there is no material difference between the evidence on this trial and that on the former trial.

On the former trial the court directed a verdict sustaining the will. "We reversed that judgment and held that there was sufficient evidence upon the question of lack of testamentary capacity to make that a question for the jury. On this trial that question was submitted under instructions that had been approved on the former appeal and the contestants have argued here but one question, and that is that the evidence is not sufficient to sustain the verdict.

The contestants had evidence of the testator’s lack of testamentary capacity, but it was so overcome by evidence of testamentary capacity produced by the propounders that we cannot see how the jury could have reached any other conclusion than it did.

The judgment is affirmed.