194 Ky. 665 | Ky. Ct. App. | 1922
Opinion of ti-ie Court by
Reversing.
This appeal involves the question of whether a paper dated May 14, 1910, is the last will and testament of J. W. Strode, deceased. It was probated a-s snch by the county court of Fayette county at the instance of his widow, Irene B. Strode, the appellant and contestee below, who is the only devisee and legatee therein and. who, by its terms, is made executrix thereof. An appeal from that judgment was prosecuted to the Fayette circuit court by the appellee -and contestant below, W. D. Strode, the father and only heir of decedent, his mother being -dead, and he and appellant not having any children, though they were married in 1900 and lived together till the decedent’s death, which occurred at his home in Payette county on September 10, 1915.
The paper in question is holographic, and it gave to appellant the residence and 250 acres of land aronn-cl it, half of decedent’s property in Lexington and all of his
A second trial resulted in a verdict returned on December 5, 1919, finding the paper in contest not to be the last will and testament of the decedent upon which judgment was accordingly rendered, and on the next day appellant individually, and as executrix, entered motion to set aside the last verdict and to set aside the order granting a new trial at the first hearing and render judgment upon the verdict returned at the first trial, which motion was overruled with exceptions, whereupon she filed her motion for a new trial, including therein as one of the grounds the refusal of the court to sustain her motion for a judgment upon the first verdict. That motion was overruled and she has appealed, her counsel relying exclusively for a reversal upon the error of the’court in setting aside the verdict returned at the first trial, it being conceded that there is such a conflict in the testimony heard upon the last trial as to sustain a verdict either way, and that no other material errors occurred at that trial.
The question is, therefore, narrowed to the single proposition whether there was such an abuse of discretion by the trial court in granting the new trial upon the first hearing as will authorize us to reverse the judgment therefor, and to direct the entry of one upon that verdict? That such a practice is allowable and frequently exercised in a proper case is admitted, and this court is no exception to those recognizing and adopting it, as will be seen from the cases of C. & O. R. R. Co. v. Salyers, 187 Ky. 144; College of Dentistry v. Hartford Steam Boiler In
The practice in this court as so circumscribed, is thus stated in the opinion in the Salyers case, supra: “Conceding, that in the matter of granting a new trial, the trial courts have a wide discretion, and this court will not interfere with that discretion, unless it has been abused, to set aside a verdict and judgment when there is no error in the trial, and where there is no other good reason for so doing, is, of course, an abuse of discretion by the trial court, and this court has often asserted its right to correct erroneous rulings of the circuit court, in granting a new trial. To authorize us to do so, however, it must be clearly shown that the trial court 'has abused its
The opinion in the Nolan case, after stating the broad discretion lodged with the trial court in the matter of granting new trials and the reluctance of this court to interfere therewith, says: “While the appellate courts' are slow to disturb the action of the lower court in granting a new trial, they will do so when it plainly appears, as it does in this ease, that there is no good reason why a new trial should have 'been granted.” It could serve no useful purpose to incorporate herein a statement of the facts in all of the cases referred to, nor to insert further excerpts from the opinions, since the right in a proper case to reinstate the verdict erroneously set aside is well established, and indeed conceded.
The principal ground upon which the order setting aside the first verdict is sought to be upheld is the insufficiency of the evidence heard upon the first trial to sustain that verdict. Other grounds were relied on in' the motion therefor, three of which are referred to in briefs of appellee’s counsel, but our examination of the record convinces us that none of the latter possess merit. Indeed, counsel seem to so concede, since they are but slightly pressed. Those three additional grounds are: (a), that the court admitted incompetent evidence offered by appellant, the pro^ounder of the will; (b), because the court did not allow sufficient time for William G. Pengelly, an expert witness introduced by appellee, to give his testimony, and (c), because the court limited the number of witnesses each side should introduce and refused to permit five additional witnesses offered by appellee, to testify at that trial. Grounds (a) and (b) are
In addition to what has already been stated it appears that the decedent owned at the time of his death four hundred and eighty-three (483) acres of land in Fayette county located near the Kentucky river dividing that county and Jessamine, and it was not, therefore, the finest quality of land in the county of his residence. At the time of his marriage he owed nearly all the purchase price of his land amounting to some $10,000.00 or more, which his wife, through her labors in the household as well as work in attending to a country store, helped to pay, and -she further helped him to accumulate- other property besides. He likewise owned some real estate in the city of Lexington, but the nature and value of which is not shown, and he died possessed of personal property of the value of as much as $6,000.00.
The paper in contest is written in pencil and on a sheet of a blank ledger made of very inferior paper. The widow, within a few days after her husband’s death, believing, as she had frequently stated, that he left no will, qualified as his administratrix, and by October 18, .1915 (which was one month and eight days after his death), she had made considerable progress in winding up his estate, a part of which was a public sale of his personal property. On the day mentioned, she and. a col
At the first trial in the circuit court about nine witnesses testified in favor of the genuineness of the contested paper, while about the same number testified to the contrary, and in the latter list was Freeman, upon whose testimony' the county court probated the will, and who stated in the circuit court that he had changed his mind. Among the list of witnesses who testified for contestant was an expert from Oolumbus,' Ohio, who acknowledged that he was receiving for his services as a witness his expenses and $100.00 per day. Of the number who testified in favor of the genuineness >of the will many of them had seen the decedent not only write his name but had seen him write other papers and documents besides, while a much less number of witnesses testifying on the other side had seen him do any writing, and perhaps none of them had seen him do more than write his name. So that, we feel that we might safely conclude that the witnesses who testified for the contestee showed themselves upon the whole to be the better qualified. The expert, like all of his class, pointed out what he conceived to be discrepancies between the writing forming the will and that of other papers and documents, which are admitted to be genuine and were introduced for purposes of comparison. He particularly dwelt upon the formation of the small letters ££b” and ££r,” and the capital letters ££ J” and ££S” found in the will, and it must be admitted
Of the parol testimony heard upon the first trial the utmost that may be said is that there was no preponderance either way, which is to ignore the contradictory attitude of the witness, Freeman, and the referred to superior opportunities of oontestee’s witnesses to become familiar with and know the handwriting of the decedent; and we are by no means prepared to say that the testimony of the expert witness (who, strange to say, did not testify on the last trial, nor was his former testimony offered to be read), resolved the doubt either the one way or the other. Such testimony, as has often been held, is of the weakest character and should be received and 'weighed with great caution (Ky. Traction & Terminal Co. v. Humphrey, 168 Ky. 611), for the witness is not only most generally biased toward the side employing him, but his opinions are based, not upon facts within his ' knowledge, but upon what may be told or shown to him by others. The “standard” papers, introduced for comparison, are brought up with the record and we have closely inspected them in conjunction with the paper in contest, particularly those written in pencil, and while we observe some of the defects pointed out by the expert and some of the other witnesses, yet no op.e can make the
Aside from the above testimony, there are some circumstances in the case, which point strongly to the genuineness of the contested paper. Perhaps the one of least importance is that on the day it was written the decedent had visited at Winchester, Ky., an uncle to whom he was very much attached, and had returned home no doubt with the belief that he would not live, which proved true because he died the next day. The paper must have been written that night when the testator was distressed and disturbed and when he was fully impressed with the fact of the uncertainty of. life, since his uncle had been suddenly attacked. He had expressed on a number of occasions his intention to execute a will in favor of his wife, and there is no circumstance shown in the case why he would not want her to share all, or at least the greater portion of, his property, since she had helped him to acquire it. That the wife did not herself forge the will is not only shown by her repeated statements that her husband left no will, but strongly by the fact that she proceeded to wind up his estate as though he was intestate, and actually sold some of the property which the paper, if genuine, devised to her. Surely no other person would forge the paper without the wife’s knowledge or consent, and if she is guilty it is passing strange that she would write such a long document and take unto herself only a portion of her husband’s property when only a far less number of words would have been required to devise and bequeath to her all of it. None of the handwriting of appellant was introduced for the purpose of showing any similarity between it and the paper in contest. The irresistible conclusion to be drawn from all the facts and circumstances proven in the case, without taking further time or space to enumerate them, is, according to our view, more favorable to the genuineness of the paper than against it.
Under such circumstances did the court abuse its discretion in setting aside the first verdict so as to call for the application of the rule of practice, supra? Fully realizing that a larger discretion will be allowed the trial court in the granting of a new trial than in refusing one, for the reason and within the limitations hereinbefore stated, we are still called upon to determine what is in-
It results, therefore, that the court erred in failing to sustain the motion on the last trial to reinstate the first verdict and render judgment thereon. Wherefore, the judgment is reversed with directions to proceed in conformity with this opinion.