Fee v. Taylor
| Decision Date | 10 October 1885 |
| Citation | 83 Ky. 259,7 Ky.L.Rptr. 248 |
| Parties | Fee, & c., v. Taylor. |
| Court | Kentucky Court of Appeals |
APPEAL FROM KENTON CIRCUIT COURT.
T. F HALLAM FOR APPELLANTS.
1. The motion by defendants for a peremptory instruction should have been sustained, because the propounder failed to adduce any testimony that the deceased was of sound and disposing mind and memory at the time when, if at all, he wrote the alleged will. (Hawkins v. Grimes, 13 B. M., 269.)
2. The facts stated in defendants' petition for a change of venue being conceded, their motion should have been sustained.
3. All of the letters offered for probate in the county court, as forming together one will, were admissible in testimony in the circuit court. The propounder having chosen to litigate whether the whole of them was one will, could not, on appeal suppress such part as was damaging. (Barbage v. Squires 3 Met., 79; Powers v. Sutherland, 1 Duv., 153; Haynes v. Haynes, 33 Ohio St. 617; Creswell, & c v. Jackson, & c., 4 Foster & Finlayson, 1; Tibbatts v. Berry, 10 B. M., 476.)
CLEARY, HAMILTON AND CLEARY FOR APPELLEE.
Brief withdrawn.
The appellee, Hattie Taylor, on February 27, 1882, made a motion in the Kenton County Court to probate four letters from John B. Fee to her, dated respectively January 4, 1880, July 8, 1880, January 2, 1881, and June 30, 1881, as his last will. The appellees, his two sisters, objected, claiming that so much of the first and two last above-named letters as was of a testamentary character had been forged; and that the other letter, dated July 8, 1880, was a forgery in toto.
Upon hearing, the county court probated the last named one and that of January 4, 1880; and from this judgment the appellants appealed to the circuit court, and then applied for a change of venue, which was properly refused. The appellee then filed a statement to the effect that she offered for probate only the letter of July 8, 1880, and would not offer that dated January 4, 1880; but was willing the court should reject the latter or direct the jury to find that it was not the last will of the decedent. The parties then went to trial, resulting in a finding that the letter of July 8, 1880, was such last will; and we are now asked to review the case upon an assignment of only one hundred and three errors. We shall only notice such as are deemed material. It is urged that the peremptory instruction to find for the appellants should have been given, because no testimony whatever was offered to show soundness of mind of the writer when the letter of July 8, 1880, was written. When, however, the due execution of a paper, rational in its provisions, and consistent in its details, language and structure, has been proven, the propounder has made out a prima facie case; and the burden of showing that the testator was not of a sound and disposing mind when the writing was executed shifts to the contestant. The third instruction given by the court conformed to this rule. The appellants offered to show, by experts, by what is commonly known as a comparison of hands, and who did not know the handwriting of the deceased, that the paper in contest was not genuine.
The letter written by the deceased on July 3, 1880, and which was proven and admitted to be genuine, had been properly allowed to go to the jury as evidence, as it was referred to in the one of July 8th; and they proposed to so show, not only by a comparison between it and the disputed one, but between the latter and the other three letters that had been offered for probate in the county court.
Witnesses were at hand and had already testified, who knew the handwriting of the deceased. Any necessity, therefore, for such a course, even if it were allowable, did not exist.
The general rule is, that a witness who is introduced to prove the handwriting of a person, must have personal knowledge of it, either by having seen him write, or by having seen writing admitted by him to be his or, with his knowledge acted upon as his, or so adopted into the ordinary business of life as to create a reasonable presumption of its genuineness. The exceptions to this rule as given by Mr. Greenleaf, in the first volume of his work upon evidence, section 577, are, first, where the paper...
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