was given for a much longer time than required, and there is no pretense that it was not given in the manner prescribed.

volved is as follows, to wit: "It shall be the duty of the county clerk to give to the sheriff of the county, or such officer as may be appointed to hold said election, a certi- Cyc. vol. 15, p. 318, tit. Elections, says: fied copy of the order of the county court "The courts in order to give effect to the will as it appears on the order book within five of the majority, and to prevent a disfrandays after said order is made; and it shall chisement of legal voters, have quite unibe the duty of said sheriff or other officer, formly held that these provisions which are to have said order published in some weekly not essential to a fair election are merely foror daily paper published in the county for mal and directory." Again, in 36 Cyc. 1158, at least two weeks before the election, and tit. Statutes, says: "When a particular proalso to advertise the same by printed or vision of a statute relates to some immawritten handbills posted at some conspicu- terial matter, as to which compliance with ous place in each precinct in the county, the statute is a matter of convenience rathfor the same length of time, when the elec-er than substance, or where the directions of tion is held for the entire county; and when a statute are given merely with a view to the election is ordered to be held only in a the proper, orderly, and prompt conduct of city, town, district or precinct of any coun- business, the provision may generally be rety, then at five conspicuous places therein garded as directory." for the same length of time; and in any McCreary on Elections, § 225, puts the rule case, if there is no weekly or daily newspa- thus: "But if, as in most cases, that statper published in the county, or the proprie- ute simply provides that certain acts or tor of such newspaper refuses to publish things shall be done within a particular time such notice, the printed or written handbills, or in a particular manner, and does not deposted as before provided for, shall be suf- clare that their performance is essential to ficient notice. The sheriff, or other officer, the validity of the election, then they will be shall have the advertisement and notices regarded as mandatory if they do, and diherein provided for posted as herein requir-rectory if they do not, affect the actual mered within seven days after he receives the its of the election." order of the county court."

The determination of the first question must depend upon whether or not the last sentence of the statute quoted is mandatory or merely directory. This section of the statute only requires that such an election shall be advertised in the manner prescribed for at least two weeks before the election, and clearly no election could be upheld where any advertisement was for a less time, or in a different manner from that specifically set forth in the statute. But after fixing the length of time which it is to be advertised, and the manner thereof, the additional sentence last quoted evidently was inserted so that if the sheriff, or other ministerial officer did not perform that duty within the seven days, he might thereafter be compelled to do so in time to hold the election. It could not have been the purpose of the Legislature to give to a ministerial officer the right to thwart the will of a majority of the people of a community by merely failing or refusing to do that which the law requires of him.

To hold that last provision mandatory would be to say that the sheriff might at his discretion prevent the holding of a local option election in any city or town in this state by merely failing or refusing within the seven days to give the notice. Such provisions in statutes relating to elections are never held to be mandatory unless they affect the real merits of the controversy. The vital thing which that statute requires is to advertise the election for a given time, and in a prescribed manner, and any material departure from that we would certainly hold

Manifestly it was not essential to the holding of a fair and equal election that the sheriff should have within seven days after receiving the county court orders caused the election to be advertised, when as a matter of fact he did cause it to be advertised for the length of time, and in the manner prescribed by the statute. The failure to comply with immaterial or nonessential requirements in an election statute, when such failure does not affect the merits of the election, will not be permitted to disfranchise the electorate. Any other rule would sacrifice substance to form, and invite contests in all kinds of elections upon ultratechnical grounds.

[2] Section 2563, Kentucky Statutes, is a part of the local option law and reads as follows: "The election or elections herein provided for shall not be held for any [county] city, town, district or precinct oftener than once in every three years."

The contention of appellees that, because pending the former contest the sale of liquor was continued in the city of Georgetown up to a period within three years of the last election, this section should apply, cannot be upheld. The section is clear and explicit in its language, and does not take into account, and could have no reference to any sale of liquor that may have been permitted pending a contest over a former election. To hold that such sales pending the contest should be considered in estimating the time between elections of this kind would be to encourage flimsy and unnecessary contests, and offer an inducement to have them long drawn out.

reversed, with directions to enter a judgment liam H. Hildreth and another appeared as in the circuit court in conformity herewith, contestants. From a judgment admitting to and to direct the proper boards of tribunals probate a part of the will and rejecting the to enter a judgment conforming to this opin- balance, proponents appeal. Reversed and ion. remanded, with directions.

B. S. Grannis, C. B. Morford, and Jno. P. McCartney, all of Flemingsburg, for appellants. Holmes & Ross, Wm. Conley, and Morgan & Darragh, all of Carlisle, for appel

HILDRETH et al. v. HILDRETH et al. (Court of Appeals of Kentucky. May 7, 1913.) 1. WILLS (§ 388*)-PROBATE-APPEAL-FAIL- lees. URE TO TAKE CROSS-APPEAL-EFFECT.

Where contestants did not take a cross-appeal from so much of the judgment as sustained a part of the will, no decision on proponent's appeal could affect so much of the judgment. [Ed. Note.-For other cases, see Wills, Cent. Dig. 860; Dec. Dig. § 388.*]

2. WILLS (§ 21*)-TESTAMENTARY INCAPACITY -EVIDENCE.

A part of a will cannot be rejected for want of testamentary capacity of testator while another part is admitted to probate, at least in the absence of evidence that testator's mind with respect to the subjects treated of, or devisees affected by the part of the will rejected, was prejudiced or unbalanced.

[Ed. Note.-For other cases, see Wills, Cent. Dig. $$ 48, 49; Dec. Dig. § 21.*] 3. WILLS (§ 163*)-UNDUE INFLUENCE-EVI

DENCE.

Where no undue influence was exercised over testator to induce him to give his prop; erty to his wife for life, it must be presumed that none was exercised to induce him to dispose of the remainder.

SETTLE, J. A. R. Hildreth, a resident of Nicholas county, died in 1911 leaving a will in words and figures as follows:

"Wednesday, July 26, 1911. I, A. R. Hildreth, of the county of Nicholas state of Kentucky, being of sound mind and memory, do make, publish and declare this to be my last will and testament, to wit: First. All my just debts and funeral expenses shall be first duly paid. Second. I give, devise and bequeath all the rest, residue and remainder of my estate, both real and, personal, to my beloved wife Sally A. Hildreth during her life. At her death, I hereby devise and order that my property, both real and personal, be sold and divided as follows: (1) To Ella Gay and Perry C. Gay, her son, fifteen hundred dollars ($1,500.00), to be equally divided between them. (2) All the rest, residue

[Ed. Note.-For other cases, see Wills, Cent. and remainder I hereby give and bequeath Dig. §§ 388-402; Dec. Dig. § 163.*]

4. WILLS (8 55*)-TESTAMENTARY CAPACITYEVIDENCE.

Evidence held not to show want of testamentary capacity.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 137-158, 161; Dec. Dig. § 55.*]

5. WILLS (§ 166*)-UNDUE INFLUENCE-EVIDENCE.

Evidence held not to show that a will was procured by undue influence.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 421-437; Dec. Dig. § 166.*]

6. WILLS (§ 163*)-UNDUE INFLUENCE-BUBDEN OF PROOF.

Where the due execution of a will is proved, the contestant has the burden of showing that undue influence was actually exercised, and it is not sufficient that there was an opportunity to exercise it, or a possibility of its

exercise.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 388-402; Dec. Dig. § 163.*] 7. WILLS (§ 390*)-PROBATE-UNDUE INFLU

ENCE-TESTAMENTARY CAPACITY.

Where a part of a will was admitted to probate and a part rejected and there was no evidence of testamentary incapacity or undue influence relied on by contestants, the court on appeal will set aside the judgment admitting part of the will and order the probate of the entire will.

[Ed. Note. For other cases, see Wills, Cent. Dig. 862; Dec. Dig. § 390.*]

to my beloved brother in the church, Rev. A. H. Miller, President Kentucky Conference Methodist Protestant Church, to be used in church work as he may think best. (3) I hereby nominate and appoint my wife Sally A. Hildreth, to be the executrix of this my last will and testament, without bond, hereby revoking all former wills by me made. Lastly, I hereby testify that this instrument of writing was dictated by me in the presence of the two subscribing witnesses. In testimony, whereof, I hereunto set my hand and seal this 26th day of July, 1911. A. R. Hildreth."

"Signed, sealed, published and declared as and for his last will and testament by the above-named testator in our presence; who have at his request and in his presence, and in the presence of each other signed our names as witnesses thereto. C. B. Standiford, Witness. W. C. Sparks, Witness."

The will was admitted to probate in the Nicholas county court and the widow duly qualified as executrix. From the order probating the will the appellees, Aquilla Hildreth and William H. Hildreth, brothers of the testator, prosecuted an appeal to the Nicholas circuit court, and on the trial in that court the jury returned a verdict sustaining the will as to the devise to the wid

Appeal from Circuit Court, Nicholas ow, but rejected it as to the devises to Ella County.

Proceedings by Sallie A. Hildreth, executrix, and others, for the probate of the will of A. R. Hildreth, deceased, in which Wil

and Perry C. Gay and the Rev. A. H. Miller. Judgment was thereupon entered in conformity with the verdict. The executrix and devisees in remainder, being dissatisfied

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

with so much of the verdict and judgment | the making of that part of the instrument as rejected that part of the will containing procured by undue influence exercised over the devises to the latter, and having failed the mind and will of the testator? to obtain a new trial, have appealed to this court.

[1] The appellees, contestants in the court below, seem to have acquiesced in the verdict and judgment in so far as they sustained that part of the will devising the entire estate to the testator's widow for life; at any rate, they have not taken a cross-appeal. So, whatever may be our decision on the present appeal, it cannot affect that part of the will. In Randolph v. Lampkin, 90 Ky. 551, 14 S. W. 538, 12 Ky. Law Rep. 517, 10 L. R. A. 87, a similar situation was presented. Contestants attempted to break a will whereby the testator devised the bulk of his estate to the widow and children of a deceased nephew, and a small parcel of land each to Lewis Washington and Jefferson Blackwell. The will, like the one here involved, was all written and executed at one time; no codicil being thereafter added. On the trial in the circuit court the jury returned a verdict finding the instrument in question to be the testator's last will so far as it made provision for Washington and Blackwell, and not his last will so far as it made provision for the widow and children of the nephew. In declaring the effect of this singular finding the court said: "As, under section 35, c. 113, General Statutes [now section 4859, Kentucky Statutes], the proper issue for the jury in a will contest is 'whether or how much of any testamentary paper produced is or is not the last will of a testator,' it was competent for the jury to find the verdict rendered; and although the devisees, Washington and Blackwell, as well as the contestants, are before this court as appellees, still, as there was not in the lower court, nor, by reason of the relative attitude they occupy, can be any real contest between them and appellants, the judgment must, in the absence of a cross-appeal, be treated as to them final and conclusive."

While the instructions given on the trial in the circuit court were formally objected to, both by appellants and appellees, and were complained of by the appellants in the motion and grounds for a new trial, it is not now claimed by the latter that they were not substantially correct, but they insist that so much of the verdict as set aside that part of the will containing the devises to the remaindermen was contrary to and unsupported by the evidence, for which reason the jury should have been peremptorily instructed to find that the entire paper was the last will and testament of the testator. If this contention is sustained by the record, it will be unnecessary to consider other errors assigned for a reversal. So, the questions first presented for consideration are: Was the testator mentally competent to make that part of his will now in controversy? Was

[2] It is difficult to understand how one part of the will could be rejected for want of testamentary capacity on the part of the testator, and another part of it, made at the same time and not more plainly expressed, be admitted to probate. If it had been shown by the evidence that the testator's mind, with respect to the subjects treated of or devisees affected by that part of the will set aside by the verdict of the jury, had been prejudiced or was unbalanced, it might afford some explanation of the verdict; but, no such evidence being furnished by the record, it must, at least, be presumed that, if the testator was competent to make a part of the will, he was competent to make all of it.

[3] It should also be presumed that, if no undue influence was exercised over the testator to induce him to make that part of the will containing the devise to his wife, there was none to induce him to make that part of it containing the devises to the Gays and Miller. Our analysis of the evidence found in the record convinces us that the verdict, in so far as it set aside that part of the will affecting the remaindermen, was unauthorized.

[4] There was no evidence showing the testator lacked testamentary capacity. His education was limited to ability to read and write, and he was somewhat eccentric, but possessed sufficient mind to take care of his estate and property and transact whatever business appertained to the occupation of farming. He had been admitted to the ministry of the Methodist Protestant Church, and was, at times, a religious enthusiast, but never a person of unsound or even unbalanced mind. According to the evidence, his ill health, resulting from tuberculosis, though continued through several months before his death, did not impair his mind or will power.

The contestants and one or two witnesses introduced in their behalf testified that in their opinion the testator was not competent to make a will. On the other hand, a greater number of witnesses, testifying for the propounders, expressed the opinion that he was competent, and the evidence as to his life and conduct was of far greater value in establishing his testamentary capacity than the mere opinions of witnesses. Besides, the circumstances attending the making of the will proved it to have been made after a survey by the testator of his entire estate, a selection of the objects of his bounty, with a full understanding of its meaning and effect, and in pursuance of a fixed purpose formed and expressed 20 years before its execution. In addition, it cannot be denied that the will makes a rational disposition of the testator's estate. It manifests: First, his solicitude for the wife whose affection and frugality through the long years

of their married life had contributed to his no attempt then or later to change his mind. happiness and the enlargement of his es- The only evidence relied on by appellee as tate; second, his purpose to reward the two conducing to prove the wife's influence over faithful servants whose ministrations had the testator was a statement, made by her added to his and his wife's comfort and on a single occasion to a tenant, that she would continue in her behalf after his death; | wanted crops other than tobacco and waterthird, his purpose to make an offering to melons grown on ground the latter had rentthe church whose consolations he had re-ed of the testator for the cultivation of waceived and in whose ministry he had served. termelons and tobacco; and another state[5] The record also fails to furnish any ment, jocularly made during the testator's evidence of undue influence. No witness ever illness to keep him from leaving his bed, heard the wife mention the making of a will which statement was, in substance, that she to the husband; but it is insisted for appel- now had him where she could manage him. lees that as she wrote Sparks, a near neigh- There was nothing in the evidence that tendbor and the draftsman of the will, the tes- ed to show hers was the dominating mind, tator desired him to call and attend to some or that she ever attempted to control his acbusiness for him, and later sent for Standi- tions or change his purposes about any matford, one of the subscribing witnesses to the ter or thing. It is now claimed by appellees will, that these acts, by implication, consti- that any of the devisees in remainder intute proof of undue influence exercised by fluenced the testator to make the will, and the wife over the mind of the testator re- one of them, Rev. A. H. Miller, had not seen sulting in the execution of the will. him for more than a year before the will was executed.

In brief, there is no proof in the record relating to the devises in the will, showing even a suggestion on the part of any one that the testator should make them, or any fact from which an inference can be drawn that he was influenced to make them or any of them. In disposing of his estate as he did, the testator evidently acted upon his own judgment and according to a fixed purpose long before formed, knowing his duty to his wife and his obligations to the two faithful servants and the church of which he was a minister. There was therefore nothing unreasonable or unnatural in the provisions of the will.

The facts justify no such inference; both Standiford and Sparks testified that when they arrived at the residence of the testator he informed them he had directed his wife to request their presence, and that he wished Sparks to write his will and he and Standiford to witness it. Sparks arrived ahead of Standiford and, after receiving directions from the testator as to what the will should contain, went into an adjoining room where there was a table to write the will, and there prepared it as the testator had directed. While he was writing the will Standiford sat in the room with the testator, and, when the will was completed, it was read by Sparks to the testator, who then took it in his hands and read it himself, following [6] The law applicable to the facts here which it was signed first by him and then, presented is well stated in Childers Ex'x v. at his request, by the two subscribing wit- Cartwright, 136 Ky. 498, 124 S. W. 802, in nesses in his presence and in the presence of the opinion of which it is said: "The rule is each other. While reading the will the tes- well settled that, after due execution is tator remarked that it would have been well proved by the propounders, the burden of to put in it a provision requiring Ella and showing that the instrument is invalid, bePerry Gay to remain with his wife as long cause procured by the exercise of undue inas she lived, but added that it was unneces- fluence, is upon the contestants. This must sary that this be done as they would re- be shown by evidence at least tending to esmain with her anyhow. According to the tablish that undue influence was exercised further testimony of both Sparks and Stand-upon the testator. It is not sufficient that it iford, the testator's wife was not present be shown that there was an opportunity to while the will was being prepared or when exercise undue influence, or that there was it was executed, nor was she, at any time, in a possibility that it was exercised; some the room with Sparks while he was writing evidence must be adduced showing that such it. They also testified that she had nothing influence was exercised. The law permits to say about the will and asked no questions the owner of property, who is of sound mind before or after its execution. It also ap- and disposing memory, to transmit his proppears from the testimony of numerous wit-erty by last will and testament in such mannesses that the testator said 20 years before ner as pleases him, and juries are not perhis death that he had made up his mind mitted to make for him a will that accords years before to dispose of his estate as was with their ideas of justice and propriety; done by the will, which conclusion he, at nor are they permitted to suspect away the that time, communicated to his wife and right of the testator to dispose of his propsteadfastly adhered to until the will was ex- erty in accordance with his own will and deecuted. The wife, when informed how he sire." would make the will, acquiesced in the contemplated disposition of his estate and made

[7] To permit the verdict to stand in this case would be to allow the jury to dispose.

SHOOTING QUESTION FOR JURY.

Where accused, on trial for willful and malicious shooting, fired his pistol recklessly, the jury might infer malice from the recklessness. [Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. § 69; Dec. Dig. § 49.*] 4. ASSAULT AND BATTERY (§ 57*)—MALICIOUS SHOOTING-OFFENSES.

wanton, reckless, or grossly careless handling The shooting of a pistol as the result of a of the pistol is not within Ky. St. § 1242, punishing a person shooting in sudden affray; but the act is punishable at common law by fine and imprisonment.

[Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. § 82; Dec. Dig. § 57.*] 5. ASSAULT AND BATTERY (§ 96*)-MALICIOUS SHOOTING-EVIDENCE-INSTRUCTIONS.

of the testator's property in the manner that | 3. ASSAULT AND BATTERY (§ 49*)—MALICIOUS would not accord with his intentions, which he was clearly competent to express as shown by the instrument itself. In this view of the case it is our duty, in reversing the judgment, not to direct the granting of a new trial, but to require the circuit court to set aside so much of the verdict and judgment as set aside that part of the will containing devises to the remaindermen, and by its judgment order the county court to admit the entire will to probate as the last will and testament of A. R. Hildreth, deceased. This course was in effect followed in Bush v. Lisle, 89 Ky. 402, 12 S. W. 764, 11 Ky. Law Rep. 708, wherein we said: "In our opinion the evidence in this case shows Where, on a trial for willful and malicious clearly that F. M. Lisle had testamentary shooting, the evidence showed that accused had capacity, and freely, and without undue in- been shooting his pistol, celebrating the coming of Christmas, before prosecutor appeared, and fluence, executed the paper in contest, and it there were circumstances showing that the should be held his true last will and testa- shooting done thereafter was of a similar charment. Wherefore the judgment must be re- acter, the court should charge that if the jury Idid not believe that accused willfully and maversed; and, as the verdict was not sus-liciously shot prosecutor with intent to kill tained by the evidence, the cause is remand- him, but did believe that he recklessly, wantoned, with directions to the lower court to dis- ly, or in gross carelessness shot his pistol, and miss the appeal from the order of the coun- by reason thereof shot prosecutor without malice, he should be convicted of unlawfully ty court probating and admitting to record wounding another. the paper as his will." Broaddus' Dev. v. Broaddus' Heirs, 10 Bush, 309.

For the reasons indicated, the judgment of the circuit court is reversed, and the cause remanded, with directions to the court to certify the fact to the county court, with a mandate, directing it to admit the entire paper in controversy to probate as the last will and testament of A. R. Hildreth, de

ceased.

BALEE V. COMMONWEALTH. (Court of Appeals of Kentucky. May 6, 1913.) 1. CRIMINAL LAW (§ 687*)—TRIAL-RECEPTION OF EVIDENCE OUT OF ORDER.

Under Cr. Code Prac. §§ 220-223, defining the order of proceedings and proof, permitting the commonwealth's attorney, in his closing argument, to compel accused to stand up before the jury by the side of a state's witness, was reversible error, where accused was larger than the witness, and where the question as whether accused or the witness committed the offense depended on the testimony of witnesses that the larger of the two committed the offense.

to

[Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.*]

6. CRIMINAL LAW ($ 1084*)-APPEAL-SUSPENDING JUDGMENT.

Under Cr. Code Prac. § 336, subsecs. 1, 2, providing that an appeal must be prayed dur ing the term at which the judgment is rendered, and shall be granted as a matter of right, and that when an appeal is prayed the court shall, if accused desires it, suspend execution of the judgment until the expiration of the time within which accused must lodge a transcript of the record in the clerk's office of the Court of Appeals, the circuit court, when an appeal is prayed during the term, must, as a matter of right, grant the appeal and, if accused desires it, suspend execution of the judgment.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2728, 2729, 2731, 27332735; Dec. Dig. § 1084.*1

Appeal from Circuit Court, Daviess County. Herbert Balee, alias Nick Balee, was convicted of crime, and he appeals. Reversed and remanded.

Louis I. Igleheart, of Owensboro, for appellant. James Garnett, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen., for the Commonwealth.

HOBSON, C. J. On the Saturday evening before Christmas, in December, 1911, Herbert Balee and Horace Kelley, who were both negroes and drinking heavily, were walking out a road leading out to Owensboro. It was about 11 o'clock at night and very dark. They were on their way to the house of an aunt of Horace Balee, where he was going to spend the night. They heard a cart com

ing up behind them and stopped. When the horse got up to them, either they stopped the horse, or the horse stopped. There were