First Nat. Bank of Mayfield v. Gardner

• Decision Date: 28 February 1964
• Citation: 376 S.W.2d 311
• Parties: The FIRST NATIONAL BANK OF MAYFIELD, Executor of the Will of Ed Gardner, Deceased, Appellant, v. Bunk GARDNER, Jr., Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 311

376 S.W.2d 311

The FIRST NATIONAL BANK OF MAYFIELD, Executor of the Will of

Ed Gardner, Deceased, Appellant, v. Bunk GARDNER, Jr., Appellee.

Court of Appeals of Kentucky.

Feb. 28, 1964.

James W. Stites, S. Russell Smith, Edwin H. Perry, Louisville, Malcolm R. Boaz, Mayfield, for appellant.

Charles I. Dawson, Edwin F. Schaeffer, Jr., Louisville, David R. Reed, Paducah, L. M. Tipton Reed, Mayfield, for appellee.

DAVIS, Commissioner.

This appeal presents another facet of the litigation which has arisen incident to the will and codicils of the late Ed Gardner. Some of the pertinent background may be had by reference to four previous decisions of this court relating to other phases of the matter: Commonwealth ex rel. Ferguson v. Gardner, Ky., 327 S.W.2d 947; First National Bank of Mayfield v. Stahr, Ky., 329 S.W.2d 582; First National Bank of Mayfield v. Gardner, Ky., 330 S.W.2d 409; and First National Bank of Mayfield v. Lisanby, Ky., 354 S.W.2d 32.

Appellant instituted this action in the Graves Circuit Court seeking recovery of $38,928.01 alleged to have been spent by it in order to ascertain and demonstrate to the satisfaction of the Graves County Court that a purported codicil to the will of Ed Gardner was a forgery. Appellee's motion to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted was sustained by the trial court. CR 12.02. The sole question is whether the complaint does allege facts which would entitle the appellant to relief. ^*

The allegations of the challenged complaint are embraced in thirteen numbered paragraphs which we summarize as follows:

Appellant is the qualified executor of Ed Gardner, and a nine-page will and a one-page codicil were admitted to probate June 12, 1958, by the Graves County Court as the last will of Ed Gardner. On January 4, 1959 (about seven months after the probate of the Gardner will) an unstamped letter was found in the mailbox of C. C. Wyatt, Jr., dated May 18, 1958, and purportedly signed by the decedent, Ed Gardner. This letter is referred to as the 'Dear Charles' letter. The text of the 'Dear Charles' letter informed Wyatt that Ed Gardner had on January 8, 1952, written a codicil to his will and secreted it between bricks of an open-air wishing well at his home. The letter directed Wyatt to go to the well, in the company of three other persons, where he would find the codicil unless it had been found earlier or carried away by animals.

Wyatt followed the letter's instructions on January 4, 1959, and did find an instrument purporting to be a codicil to the will of Ed Gardner. The paper was dated January 8, 1952, and is referred to as the 'wishing well' codicil. The two persons whose names appeared as subscribing witnesses on the 'wishing well' codicil had died before May 18, 1958, the date of the 'Dear Charles' letter. The provisions of the 'wishing well' codicil substantially increased the benefits to appellee, Bunk Gardner, Jr., in the Ed Gardner estate. Wyatt delivered the 'wishing well' codicil to appellant on January 4, 1959.

Bunk Gardner, Jr., either forged or conspired and confederated with others to forge both the 'Dear Charles' letter and the 'wishing well' codicil, and he uttered, caused the same to be uttered or knowingly permitted them to be uttered, for the purpose of defrauding the estate of Ed Gardner and the beneficiaries named by Ed Gardner in his will.

Appellee 'knowingly permitted his father, Bunk Gardner, Sr., to apply to the Graves County Court and obtain an order on January 21, 1959, directing the plaintiff and its Trust Officer to show cause, if any they have or can, why the purported ('wishing well') codicil should not be admitted to record.' Bunk Gardner, Jr. 'further permitted' his father to issue a statement to the press in Mayfield in which he proclaimed his belief in the authenticity of the 'Dear Charles' letter and the 'wishing well' codicil.

Appellee also asserted that the 'wishing well' codicil was genuine, and he instituted legal proceedings based on that assertion. The legal proceedings so instituted consisted of the filing by appellee, on January 22, 1959, of a verified pleading in the Graves County Court in which 'he complained about the plaintiff's refusal to produce the 'wishing well' codicil in court for probation as well as the alleged refusal of the plaintiff to permit his [appellee's] attorney * * * to see that forged codicil * * *' Appellee demanded an order of the Graves County Court requiring appellant to produce and file with the court the 'wishing well' codicil as well as the 'Dear Charles' letter so that the documents could be taken to Chicago for laboratory examination. On January 22, 1959, appellee filed a verified pleading in the county court in which he said that he believed the letter and codicil to be genuine, and that he was bolstered in the belief by expert advice obtained by him from document witnesses of national reputation. At no time between January 4, 1959, and March 30, 1959, did the appellee, or his attorneys, advise or inform appellant that both the letter and codicil were forgeries.

On March 20, 1959, the appellant obtained from the Graves County Court an order requiring appellee to show cause why the 'wishing well' codicil should be admitted to probate. In retort to the show cause order appellee asked time in which to file a response, but did not disclose that he believed the letter and codicil to be spurious. However, on March 30, 1959, appellee 'confessed' that the 'Dear Charles' letter and the 'wishing well' codicil were forged instruments. Then the Graves County Court adjudged that the 'wishing well' codicil was 'absolutely spurious, a forgery, not a genuine instrument and is null and void and of no effect.'

Next, the complaint declares that 'as a direct and proximate result of the facts set forth * * * the plaintiff was required to employ counsel to defend the proceedings instituted in the Graves County Court by Bunk Gardner, Sr. and * * * Bunk Gardner, Jr., and to conduct an exhaustive and expensive investigation with respect to the genuineness and validity * * *' of the questioned letter and codicil. Further details of the nature of the expenses entailed for these purposes are set out in the complaint, and the claim for damages is laid in the sum of $38,298.01, the amount claimed to have been expended to defend the proceedings and establish the invalidity of the documents.

The final paragraph of the complaint is:

'13. The defendant, Bunk Gardner, Jr., is liable in fraud and deceit to the plaintiff in the amount of $38,298.01, that being the amount of damages sustained by the plaintiff as set forth in paragraph 12 next above.'

The just quoted paragraph has particular significance in that the parties argued the case to the trial judge on the concept of a cause of action in fraud and deceit. They recognized the six elements of that common law action as set forth in Crescent Grocery Co. v. Vick, 194 Ky. 727, 240 S.W. 388. The trial judge was of the view that all elements of the cause were alleged except the vital element of 'reliance.' On appeal the appellants continue to rely on the common law action for fraud and deceit, but urge an additional ground:

It is contended that the alleged activities of appellee constitute a charged violation of KRS 434.130(1). Then attention is directed to KRS 446.070, which provides a person injured by violation of a statute may recover from the offender damages sustained by the violation.

Appellee vigorously contests the right of appellant to present any new argument in this court. We are invited to examine Tipton v. Brown, 273 Ky. 496, 117 S.W.2d 217, and Holloway v. Brown, 181 Ky., 716, 205 S.W. 925, along with other cited cases, as sustaining the appellee's point of view that nothing may be argued here that was not argued below. Our examination of those authorities does not impel us to that conclusion.

In 5 Am.Jur.2d, Appeal and Error, Secs. 545 and 546, pp. 29-31, is found a general text recognizing that appellate courts normally consider only the questions which were raised and reserved in the lower court. It is there noted that the reviewing court will consider the case only upon the theory upon which it was tried in the lower court. The same authority points out, however, that adherence to the theory relied on in the trial court does not mean that the parties are limited to the same reasons or arguments advanced below. This court may accept and consider reasons and arguments which were not presented to the trial court.

The sole issue before the trial court was whether the complaint did state facts upon which relief could be granted. As noted, by paragraph 13 of the complaint, the pleader sought to fix a label to the cause of action, and entitled it 'fraud and deceit.' But the name or title ascribed to the cause of action is not controlling.

In the celebrated case of Prewitt v. Clayton, 21 Ky. (5 T.B.Mon.) 4, this court, through Chief Justice Bibb, observed:

'A bear well painted and drawn to the life is yet the picture of a bear, although the painter may omit to write...