Adams v. Flora

• Decision Date: 03 October 1969
• Parties: Emma ADAMS et al., Appellants, v. Estill FLORA et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 420

445 S.W.2d 420

Emma ADAMS et al., Appellants, v. Estill FLORA et al., Appellees.

Court of Appeals of Kentucky.

Oct. 3, 1969.

Lloyd A. MacDonald, William T. Walton, MacDonald & Walton, Flemingsburg, Amos H. Eblen, Eblen, Howard & Milner, Lexington, for appellant.

Marvin W. Suit, Flemingsburg, John H. Clarke, Jr., Maysville, for appellee.

CLAY, Commissioner.

In this will contest case the will was upheld by the jury. The deceased died at the age of 74, having made her will 3 1/2 years prior thereto. She had no close kindred and most of her estate was left to strangers in blood. It is unnecessary to consider the extensive evidence relating to mental incapacity and undue influence. In the closing argument counsel for the proponent appellees made some statements which were improper and which were duly objected to. In our opinion these statements were prejudicial and the trial court erred in failing to sustain the objections thereto and admonish the jury. We quote what took place (adding our own emphasis):

'John H. Clarke Jr.: This case is important to Estill Flora, and the three children, the St. Charles Church and to the bank as Trustees of the Cemetery. That they are all asking you to uphold this will. But, in addition, to that this case is important to every man, woman, boy and girl in Fleming County, which I have had no less than 6 people who have no interest in this case whatsoever, who have told me that if Lillie Howard's will is broken--

'Lloyd A. MacDonald: We object your honor.

'Judge John A. Breslin: If it (is) on personalities I will sustain it, if is on generalities I will overrule. As long as it is reasonable reference an (inference) from what has been produced in the trial you may speculate.

'John H. Clarke, Jr.: (Continuing) Who have told me that if you break this will every will that has been written by ony person 65 years old that doesn't suit some of the kinfolks--

'Lloyd A. MacDonald: I object.

'Judge John A. Breslin: Mr. MacDonald, Ladies and Gentlemen of the Jury: Counsel is entitled to draw from the testimony any reasonable inference; you decide, you are the judges of the fact whether or not Mr. Clarke's inferences are from what he has heard here.

'John H. Clarke, Jr.: (Continuing '* * * We have at times, from time to time, been a little forgetful about details, but I don't believe that you on this jury, and some of you are about 65 years old you don't know what you own. You don't know the value, you don't know who your kin are. You don't want to make a will according to the law then you were willing for a jury to come in and say you didn't like the way that was written we are going to give it to the legal heirs.'

It will be noted that in this argument appellees' attorney was invoking the hearsay opinion of nonwitnesses concerning the merits of the controversy, and he was also appealing to the emotions and possible prejudice of older members of the jury. This was improper argument and appellees practically concede as much. See Kentucky Wagon Mfg. Co. v. Duganics, Ky., 113 S.W. 128; Liverpool & London & Globe Ins. Co. v. Wright, 166 Ky. 159, 179 S.W. 49; and Louisville & N.R. Co. v. Gregory, 284 Ky 297, 144 S.W.2d 519.

Our real question is whether the remarks must be deemed prejudicial. The contention is made by appellees that since appellants really had no case to begin with, the statements of counsel could not have had a prejudicial effect. If appellees had such a strong case, why did their counsel find it necessary to go outside the record and attempt to improperly influence the jury? The failure of the trial judge to sustain the objection and admonish the jury (if an admonition had been requested), and his remakrs, could be construed as permitting the jury to rely on...