Bramel, &c. v. Bramel, &c.

duly influenced. This court has often held that instructions given to a jury are to be considered as a whole, and that omissions in one instruction can be supplied by reference to another, and, while it would have been perhaps better to have added to instruction No. 1 the words "Unless they believe as indicated in Instruction No. 7," we do not think they could have misled the jury, even if we assume that the record discloses sufficient evidence of undue influence to form a basis for an instruction upon that subject.

Instruction No. 2, also complained of, is as follows: "If the jury believe from all the evidence that said instrument of writing is consistent in its provisions and rational on its face, the presumption is that said John Bramel was of sound mind at the time of its execution, and the burden shifts to contestants to show that he was not of sound mind at that time."

It is earnestly contended that the burden of proof does not shift, and, while this court has, in various cases, objected to the use of such phrases as "burden of proof" and "preponderance of evidence" in instructions to juries, their use is not necessarily reversible error.

Judge Marshall, in the case of Hawkins v. Grimes, 13 Ben. Monroe, 257, decided that "If upon the whole evidence, pro and con, it be doubtful whether the party be sane or not, then the presumption in favor of sanity may operate to decide the question otherwise in equipoise."

In the case of Milton v. Hunter, 13 Bush, 163, Chief Justice Lindsay condemned an instruction which placed the burden of proof as to testamentary capacity upon the propounders, in an opinion in which he used almost the exact phrase used

Bramel, &c. v. Bramel, &c.

in the instruction complained of, saying: "When the propounders of a will have proved the due execution of a paper not irrational in its provisions, nor inconsistent in its structure, language or details with the sanity of the testator, the presumption of law makes out for them a prima facie case, and the burden of showing that the testator was not in fact of sound and disposing mind and memory at the time of the execution of the will is shifted upon the contestants."

Judge Lindsay there held that the instructions under consideration in effect took from the propounders the benefit of the presumption of sanity. So in the case of Flood v. Pragoff, 79 Ky., 611, Judge Hines, delivering the opinion of the court, said: "In fact it is not ordinarily necessary that the propounders should show, as they did by attesting witnesses, that the testator was of sound mind, provided the statutory requirements were complied with, and there is nothing in the paper when presented which is irrational and inconsistent. Then the burden shifts to the contest

ants."

And in the case of Fee v. Taylor, 83 Ky., 259, Judge Holt stated the law as follows: "When, however, the due execution of a paper, rational in its provisions and consistent in its details of language and structure, has been proven the propounder had made out a prima facie case, and the burden of showing that the testator was not of a sound and dispos ing mind when the writing was executed, shifts to the contestant. The third instruction given by the court conformed to this rule."

The exact question raised in the case at bar was made in

Bramel, &c. v. Bramel, &c.

the case cited, and decided contrary to the contention of appellants.

It is claimed, however, that in Johnson v. Stivers, 95 Ky., 128, in an opinion by Judge Hazelrigg, the doctrine we have stated was modified by saying: "The burden was on the propounders to show, by a preponderance of evidence, that the testatrix was of testamentary capacity, and on the contestants to show by a preponderance of testimony that she was unduly influenced or coerced, as defined in the instructions," referring to the case of Fee v. Taylor, above cited, and other

cases.

The reference to Fee v. Taylor, in support of the opinion, would clearly indicate that it was not intended to modify the doctrine there laid down, and that the statement that the burden as to testamentary capacity was on the propounders referred to the establishment of a prima facie case. And in Barlow v. Waters, (28 S. W. 785), this court, in another opinion by Judge Hazelrigg, confirms our conclusion as to what was meant by the opinion in Johnson v. Stivers by saying: "No. 7 places the burden of proof, as to the execution of the paper in the manner defined in No. 1, on the propounders, and the burden of showing undue influence or unsoundness of mind on the contestants. This conforms to the rule laid down by this court in Fee v. Taylor, 83 Ky., 259, and Johnson v. Stivers, (95 Ky., 130.)"

While we think it better practice to instruct the jury that if they believe from all the evidence the testator was of sound and disposing mind, etc., they should find accordingly, with, perhaps, a statement of the presumption of sanity, yet

Bramel. &c. v. Bramel, &c.

the instruction given in this case is, by the established rule in the State, not reversible error.

Instruction No. 3, which begins by stating to the jury, almost in the language used by Judge Simpson in Howard v. Coke, 7 Ben. Monroe, 658, that "the soundness of mind referred to in the instructions is not necessarily such strength of mind as will enable a man to fairly contract with another at arms length, or of trafficking in property and managing it advantageously," is also objected to as misleading, because a statement of a mere abstract proposition. The instruction,

however, proceeds with a correct definition of the capacity required to render a man mentally competent to make a will.

And in Wise v. Foote, 81 Ky., 10, a case frequently re ferred to in later opinions of this court upon this subject, almost the exact language of the instruction was used as a correct statement of the law. The latter part of this instruction is also complained of as by implication, stating to the jury that the testator owed duties to the devisees named in the paper. That part of the instruction is as follows: "But the capacity required to render a man mentally competent to make a will exists when the testator has will, mind and memory to sufficiently understand that he is select ing the person or persons whom he wishes to have his property, and to know his property and the natural objects of his bounty, and his duties to them and to the persons upon whom his property is bestowed by the testamentary paper which he signs, and to make such disposition in accordance with a then settled purpose of his own."

We do not think that this instruction was an instruction

Bramel, &c. v. Bramel, &c.

that he owed duties either to the natural objects of his bounty or to the persons upon whom he bestowed his proper ty, but that it left the jury to decide the question of mental capacity to know whether or not he owed them duties, and must have been so understood by the jury. This part of the instruction is also in great part a quotation from Wise v. Foote, supra, to which this court referred with approval in Johnson v. Stivers, 95 Ky., saying: "The other instructions conformed to the law as laid down in Wise, &c. v. Foote, 81 Ky., 15.”

The remaining objection to this instruction is that it uses the words "in accordance with a then settled purpose of his own" as carrying with them the idea of less permanence and stability than the words "fixed purpose." The words "fixed purpose of his own" have been often approved by this court in this connection, but we do not think the words used were or could have been understood by the jury to have a materially different meaning from the language which is more commonly made use of.

The objection is not well taken which is urged to the refusal of the court to permit appellants to prove by appellee, Martha Bramel that on a former trial William Coleman, a devisee, testified to a certain conversation between the appellees, Martha and John W. Bramel. We can see no ground for the admission of such testimony. It was not an admission against interest by Coleman, but hearsay as to an admission against interest by Martha and John Bramel, nor do we think the other refusals to admit testimony were material.

Wherefore, the judgment is affirmed.