Irvine v. Greenway

• Decision Date: 18 March 1927
• Citation: 220 Ky. 388,295 S.W. 445
• Parties: IRVINE v. GREENWAY ET AL.
• Court: Kentucky Court of Appeals

295 S.W. 445

220 Ky. 388

IRVINE v. GREENWAY ET AL.

Court of Appeals of Kentucky.

March 18, 1927

Rehearing Denied, with Modification, June 24, 1927.

Appeal from Circuit Court, Madison County.

Application by David Irvine to secure a retrial of the question of the probate of the will of Elizabeth S. Irvine, deceased, opposed by William Irvine Greenway and the decedent's executor who filed a counterclaim and cross-action. From a decree in favor of the proponents, re-establishing the will, David Irvine, contestant, appeals, and the proponents cross-appeal. Affirmed on both original and cross-appeals.

John Noland, of Richmond, and Benton & Davis, of Winchester, for appellant.

Grant E. Lilly, of Lexington, and Burnam & Greenleaf, of Richmond for appellees.

DRURY C.

From a judgment establishing a certain paper as the will of Elizabeth S. Irvine, the contestant, David Irvine, has prosecuted this appeal. On April 7, 1885, William M. Irvine died, and shortly thereafter a paper was probated as his will. The rights of David Irvine arise under the second clause of that instrument, in which we find the following:

"2d. I give to Irvine White my nephew of Huntsville, Alabama, my farm adjoining the town of Richmond, Ky. containing over 200 acres and situated in the forks of the Richmond and Barnes Mill Turnpikes to use and enjoy the profits of during his natural life and at his death the title in same to his second son David Irvine provided he drops the White from his name and takes that of his grandfather, David Irvine."

In a previous clause of his will, William M. Irvine had devised all of his property to his wife, Elizabeth S. Irvine, and had further provided:

"In the event, however, that she, my wife, dies intestate and without making any disposition of my estate, then I provide that my estate shall be divided as follows."

William M. Irvine then proceeded to make a disposition of his property that would be effective in event his wife died intestate, and, among the other devises made by him, we find what we have copied above from section 2 of his will relative to David Irvine, who was then David Irvine White, but who has since, by proper legal proceedings, had his name changed to David Irvine, and he is so known in this record. Elizabeth S. Irvine lived for 35 years after the death of her husband. She died on November 25, 1920. On December 6, 1920, the paper in question was admitted to probate by the Madison county court as her will. A few days thereafter, David Irvine White, a nephew of Elizabeth S. Irvine, prosecuted an appeal to the Madison circuit court from the order probating the paper in question as the will of Elizabeth S. Irvine. On January 26, 1921, David Irvine White entered into a written contract or agreement with John W. Crooke, who had qualified in the Madison county court as the executor of Elizabeth S. Irvine under this paper. Pursuant to and as a result of that contract, the appeal of David Irvine White, contesting said paper, was dismissed on February 18, 1921, and immediately after that a suit was filed by the executor, Crooke, in which he sought to obtain a construction of three wills: First, a construction of the will of David Irvine, Sr.; second, that of his son-in-law, William M. Irvine; and third, a construction of the will of Elizabeth S. Irvine, who was a daughter of David Irvine, Sr., and the wife of Wm. M. Irvine, and whose will is the one here in question. An issue in that case arose between William Irvine Greenway, on one side, and David Irvine White and the latter's son David Irvine, upon the other. That case has reached this court twice. See Greenway v. White, 196 Ky. 745, 246 S.W. 137, 32 A. L. R. 1385, and White v. Greenway, 209 Ky. 368, 272 S.W. 920. After that case had been decided, the appellant here, David Irvine, as sole contestant, prosecuted a second appeal from the order of the Madison county court probating the paper in contest as the will of Elizabeth S. Irvine, and it might be of interest to narrate the various steps taken upon this second contest, but that would do no good, as it never progressed to the point of a trial, and was finally dismissed by David Irvine, the appellant here.

In the original contest of this will, begun in December, 1920, by David Irvine White, his son, the appellant here, David Irvine, had been named as an appellee and had been proceeded against in that contest (of 1920) as a nonresident. After dismissing the second will contest, the one which he had begun, David Irvine, on May 12, 1923, filed in the Madison circuit court a petition in equity under section 4861, Ky. St., which section is:

"Any person interested who at the time of the final decision in the circuit court resided out of this state and was proceeded against by warning order only, without actual appearance or being personally served with process, and any other person interested who was not a party to the proceeding by actual appearance or being personally served with process may within three years after such final decision in the circuit court, by petition in equity, impeach the decision and have a retrial of the question of probate; and either party shall be entitled to a jury for the trial thereof. An infant, not a party, shall not be barred of such proceeding in equity until twelve months after attaining full age."

By this petition, David Irvine sought to impeach the order of February 18, 1921, by which the contest instituted by his father was dismissed, and to secure a retrial of the question of the probate of the will of Elizabeth S. Irvine. By the provisions of section 4862, Ky. St., this proceeding could not operate further than made necessary by the rights of David Irvine, and as his rights under the will of his great uncle, William M. Irvine, clashed with the rights of his cousin, William Irvine Greenway, under the will of their aunt, Elizabeth S. Irvine, and no one else, it was not necessary that any one else be made a party to this equitable action, and no one except Greenway and the executor of the will was made a party. Greenway and the executor filed what they call an answer, counterclaim, and cross-action, in which they presented a number of technical questions, but one of which (discussed later in this opinion) is it necessary for us to consider or determine, for the court decided in favor of David Irvine on these questions, and a jury trial was had to determine whether or not the paper that had been probated by the Madison county court was the will of Elizabeth S. Irvine, and the jury found that it was. The judgment was entered accordingly, and David Irvine has several reasons for which he says this judgment is erroneous, and these we shall now discuss.

On the trial of this action, the propounders of the will introduced two witnesses by whom they established that the paper in question was entirely in the handwriting of Elizabeth S. Irvine. Then the paper was introduced, and, after it had been read to the jury, the propounders rested, whereupon David Irvine, contestant there and appellant here, moved the court to instruct the jury peremptorily to find for him. This motion the court overruled, and this is the first alleged error of which he is complaining. The paper in question was a rather lengthy and rambling sort of document, and constitutes 30 pages of the record before us. The contestant has cited the cases of Hawkins v. Grimes, 13 B. Mon. 257; Milton v. Hunter, 13 Bush, 163; Flood v. Pragoff et al., 79 Ky. 607; Fee et al. v. Taylor et al., 83 Ky. 259; Boone et al. v. Ritchie et al., 53 S.W. 518, 21 Ky. Law Rep. 864; Woodford et al. v. Buckner et al., 111 Ky. 241, 63 S.W. 617, 23 Ky. Law Rep. 627; Dunaway et al. v. Smoot et al., 67 S.W. 62, 23 Ky. Law Rep. 2289; Henning et al. v. Stevenson, 118 Ky. 318, 80 S.W. 1135, 26 Ky. Law Rep. 159; Bottom v. Bottom et al., 106 S.W. 216, 32 Ky. Law Rep. 494; Spradlin v. Adams, 182 Ky. 716, 207 S.W. 471; Wood v. Corcoran, 190 Ky. 621, 228 S.W. 32; Gernert v. Straeffer's Ex'r, 162 Ky. 605, 172 S.W. 1044. On these authorities he contends that this paper was so irrational in its provisions, so inconsistent in its structure, language, and details, with the sanity of the testatrix as to be incompatible with soundness of mind, and that, in view thereof, it was not sufficient for the propounders to merely prove that this was in her handwriting, but that the propounders should then have gone further with their proof and established by proof that Elizabeth S. Irvine, at that time, had testamentary capacity. It is not necessary for us to decide, however, whether or not the propounders had at that time made out a case, for the contestant did not elect to stand upon the record as then made, but, after his motion was overruled, introduced his evidence. The rule in this state under such circumstances is:

"Where the defendant moves for a peremptory instruction at the conclusion of the plaintiff's evidence, and, his motion being overruled, introduces his testimony, if that testimony supplies any fact or facts not shown by the evidence for the plaintiff, and thus makes out a case, this court will not reverse because these facts were not shown by the plaintiff before the motion for a peremptory instruction was made. Cincinnati, N. O. & T. P. R. Co., etc., v. Cook's Adm'r 24 Ky. Law Rep. 2152; Gordon v. Commonwealth, 146 Kv. 61, 141 S.W. 1186." Caldwell's Jud. Dic. p. 2563.

The action of the trial court in admitting and excluding evidence is also relied on to reverse the judgment, but an examination of the record has convinced us that none of the evidence admitted by the court under the first part of this objection was erroneously done. But, if in some instances it were otherwise, the testimony was immaterial and not prejudicial and...