Mercer v. Mercer's Adm'r

• Decision Date: 23 February 1888
• Parties: MERCER et al. v. MERCER'S ADM'R et al.
• Court: Kentucky Court of Appeals

7 S.W. 307

87 Ky. 21

MERCER et al. v. MERCER'S ADM'R et al.

Court of Appeals of Kentucky.

February 23, 1888

Appeal from circuit court, Marion county.

W. B Harrison and Belden & Shuck, for appellants.

Wm Lindsay and Russell & Avritt, for appellees.

HOLT J.

Persons claiming to be the devisees, under an alleged holograph will of Felix Mercer, and also claiming that the original had been stolen and fraudulently suppressed by one of his heirs offered a writing, purporting to be the substance of it, for probate. After being rejected by the county court, it was established by the circuit court, but upon an appeal to this court the judgment was reversed with directions to affirm the judgment of the first-named court. The opinion will be found in 14 Bush, 434. The only evidence offered to show the execution or existence or contents of the alleged will consisted of the declarations of Mercer; and, as the testimony failed to show its suppression or loss, and there was, therefore, no competent evidence of its execution or contents to be corroborated by his statements, this court ended the case as above indicated. The propounders had hitherto failed to produce any witness to testify that he had ever seen such a will. When, however, the time within which a petition for a new trial may be filed, upon the ground of newly-discovered evidence, was drawing to a close, this action was brought for such purpose, based upon the ground as the petition avers, that a certain party would testify that Mercer had shown him such a will; that he knew it was in Mercer's handwriting; that he had told him it was his will, and that he (Mercer) had written and signed it; that he (the witness) read it and that the paper offered for probate conformed in substance to it. When he came to testify, however, he failed to prove that the writing, which he says he saw, was in the handwriting of Mercer, either as to body or signature; he did not know his writing. He does not expressly say that Mercer told him he had himself signed his name to it; but he does testify that Mercer, when speaking of the paper, said that it was his will, and that he had written it. This, by fair interpretation, must be regarded as referring to both the body of the writing and the signature, and as evidence that it was altogether in the handwriting of Mercer. It had been proven upon the former trial, however, that Mercer said that he had written his own will. Indeed all that the newly-discovered witness states was then testified to by other witnesses, save no one...