Grider v. Fiske

• Decision Date: 18 February 1939
• Citation: 124 S.W.2d 709,174 Tenn. 243
• Parties: GRIDER v. FISKE et al.
• Court: Tennessee Supreme Court

124 S.W.2d 709

174 Tenn. 243

GRIDER v. FISKE et al.

Supreme Court of Tennessee.

February 18, 1939

Error to Circuit Court, Overton County; O. K. Holladay, Judge.

Proceeding by Jim J. Grider for probate of the will of Mary C. Grider deceased, contested by A. A. Fiske and others. A judgment on a directed verdict against the will was affirmed by the Court of Appeals, and proponent brings certiorari.

Judgment of Court of Appeals reversed, and case remanded for trial de novo.

Jacobs H. Doyle and Norman Farrell, both of Nashville, for plaintiff in error.

B. H Hunt and E. D. White, both of Livingston, for defendants in error.

GREEN Chief Justice.

This is a will contest in which the circuit judge directed a verdict against the will. The Court of Appeals affirmed the judgment below because, in the opinion of that Court, the transcript did not show that it contained all the evidence. The proponent of the will has filed a petition for certiorari which we have granted.

The will offered for probate purported to have been executed by Mary C. Grider and to have been all in her own handwriting and signed by her. Her husband, Jim J. Grider, the proponent here, was named as the sole beneficiary. The will was not witnessed. No proof was introduced tending to show that the paper writing was found among the valuable papers or effects of the testatrix. There was proof, however, by Grider himself and by two other witnesses that all of this instrument including the signature, was in the handwriting of Mary C. Grider.

Although there is testimony from one of the proponent's witnesses indicating that this will was not altogether in the handwriting of the testatrix--that her signature was forged--the testimony of her husband and the other two witnesses was to the effect that both signature and body of the will were all in the genuine handwriting of Mrs. Grider. Such being the case, the trial judge erred in directing the jury to reject the paper before us as a will of personalty. He should have left that matter to be settled by the jury.

A paper, although unattested, which purports to be a will, may be admitted to probate without other proof of its writing or publication if two witnesses testified the body and signature of the instrument to be in the handwriting of the testator therein named. Franklin v. Franklin, 90 Tenn. 44, 16 S.W. 557. See Dietz v. Gallaher, 169 Tenn. 435, 88 S.W.2d 993.

It appears from the record that the bill of exceptions was prepared by Grider himself, he not being able to get the services of an attorney for this purpose. In the order overruling the motion for a new trial, the circuit judge allowed the proponent sixty days in which to prepare a bill of exceptions, and the order further provided that the bill of exceptions must be turned over to counsel for the contestants within forty days, to be by them examined not exceeding fifteen days, and then returned to the proponent so that the same might be gotten to the court in time to be signed by him and filed within the sixty days provided.

Grider seems to have gotten up his bill of exceptions in the time allowed and submitted it to coun...