157 Ky. 468 | Ky. Ct. App. | 1914
Opinion op the Court by
Affirming.
This is a contest over the will of Mary Ann Garrott, who died in the month of April, 1912, a resident of Christian County, Kentucky. The will in question was probated by the County Court of Christian County. On appeal by the contestants to the Circuit Court the jury found in favor of the will. The contestants appeal.
The will is dated December 1, 1902, After bequeathing $200 to her companion, Miss Clark, testatrix devised her personal property to all her nephews and nieces, naming them. She then devised her farm, consisting of about 450 acres, to her only living brother, Edmond H. Garrott.
The propounders proved that the will in question was wholly in the handwriting of the testatrix, and was signed by her. They also proved the signatures of C.
The contestants are certain nephews and nieces of the testatrix, being children of her deceased brothers and sisters. According to their testimony, the testatrix sustained a fall about 31 years prior to the trial. As a result of this fall her fingers were stiffened, and after that tiiiie she wrote with great difficulty. In the opinion of several of the witnesses who had seen her write and were familiar with her handwriting, the will was neither written nor signed by her, though some of the witnesses admitted that it resembled her handwriting. These witnesses also testified that testatrix was a nervous, excitable woman and frequently expressed the fear that she would be sent to the poor house or the asylum. On one or two occasions she told certain witnesses that if she had not gone to the home of her brother and signed certain papers she would be thousands of dollars better off. In the opinion of these witnesses, she did not know what property she had. When her nieces and nephews would call, she was not able to recognize them until someone would call their names and tell her who they were. During the latter part of her life her mind began to fail. At. the time of the execution of the will she did not have mind and memory enough to know the nature, value and extent of her estate or the natural objects of her bounty and her obligations to them, or to dispose of her estate according to a fixed purpose of her own. One or two witnesses testified that Edmond H. Garrott, the devisee of the land, had frequent private conversations with the testatrix. After his departure her frame of mind was worse, and she would frequently cry. Some two or three witnesses testified that the testatrix was susceptible to influence, and that anyone could have gotten all the property that she had. Other witnesses testified that testatrix frequently announced that she wanted her nephews and nieces to have all she had. From about 1907 to 1912 testatrix was confined to the house, and was unable thereafter to attend to any business at all.
For contestees it is shown that testatrix was one of a family of five children — three girls and two boys. Her father had a large estate. Edmond H. Garrott was fifteen years younger than the testatrix. The older children married and left the paternal roof, leaving testatrix and Edmond H. Garrott and their parents occupy
Contestants insist that the verdict of the jury is flagrantly against the evidence. About 18 witnesses testified for contestants. A majority of them are the contestants themselves. On the other hand, about 30 witnesses testified for the propounders. Several of these witnesses are -the children of Edmond H. Garrott. We have carefully read the evidence. Had the jury believed the witnesses for contestants, they would have been fully justified in finding against the will. On the other hand, if they did not believe these witnesses, and believed the witnesses for the propounders, it was their duty to sustain the will. The whole case, therefore, turns on the credibility of the witnesses, a question" peculiarly within the province of the jury. There being a large number of witnesses on each side, and the evidence bing conflicting, we cannot say that the finding of the jury is flagrantly against the evidence.
Another error relied on is the admission of the other wills of testatrix without the notice required by. section
“That in any action, prosecution or proceeding, civil or criminal, which is now pending or may be commenced hereafter, upon a dispute as to the genuineness of the handwriting of a person, other handwritings of such person, though not in the case for any other purpose, may be introduced for the purpose of comparison by witnesses, with the writing in dispute; and such writings, and the testimony of witnesses respecting them, may be submitted to the court or jury as evidence concerning the genuineness of the writing in dispute: Provided, That—
“1. The genuineness of such writings shall be proved, to the satisfaction of the judge, by other than opinion evidence.
“2. It must be proved, to the satisfaction of the judge, that they were written before any controversy arose as to the genuineness of the writing in dispute, and that no fraud was practiced in their selection.
“3. A party proposing to introduce such writings must give reasonable notice of his intention to the opposite party or his attorney, with reasonable opportunity to examine them before commencement of the trial.”
It will be observed that the foregoing section provides that upon a dispute as to the genuineness of the handwriting of a person, other handwritings of such person, though not in the ease for any other purpose, may be introduced for the purpose of comparison hy witnesses with the writing in dispute, and such writings, with the testimony of the witnesses respecting them, may be submitted to the court or jury as evidence of the genuineness of the writing in dispute. Prior to the enactment of this section, other handwritings of the person whose handwriting was in dispute were not admissible for the purpose of comparison, either by expert witnesses or by the jury. To this rule, however, there were two exceptions: (1) "Where the writings are of such antiquity that they cannot be proved in the ordinary way, and yet are not so old as to prove themselves. Here other writings may be produced which are admitted to be genuine or proved to have been acted upon and recognized as such by the parties, and persons skilled in hand-writing, termed experts, may be called upon to compare them and testify concerning the genuineness of the contested
“The reason for this is obvious. As the jury have a right to look at such writings for one purpose, there is no way to prevent them from using them for the purpose of comparison; and any attempt to embarrass them, with impracticable distinctions as to the use they were to make of them, would be productive of more evil than good.”
In the present case, the other wills of the testatrix were clearly proved, and were clearly admissible to show a fixed purpose and a long-cherished intention on the part of the testatrix to devise her property to her brother Edmond. Barlow, et al. v. Waters, 16 Ky. L. R., 426; Harrison’s Will, 1 B. Mon., 351; Carico v. Neal, 1 Dana, 162. Being admissible for' this purpose, and not having been admitted for the purpose of comparison either by the witnesses or by the jury themselves, and no witness having compared them with the will in question, no notice of an intention to introduce such writings was necessary, even though the jury may have compared the writings with the will in question, a fact which does not appear.
Contestants also ask for a reversal because the trial court erred in refusing a new trial on the ground of newly discovered evidence. We have carefully read the evidence in question. In the main it is merely cumulative, and not of such a decisive character as to render a
Judgment affirmed.