Polley v. Cline's Ex'r
| Decision Date | 13 March 1936 |
| Citation | 93 S.W.2d 363,263 Ky. 659 |
| Parties | POLLEY et al. v. CLINE'S EX'R et al. |
| Court | Kentucky Court of Appeals |
Rehearing Denied May 8, 1936.
Appeal from Circuit Court, Pike County.
Proceeding by Allen D. Cline for probate of will of Mary E. Cline deceased, wherein Allen D. Cline was appointed administrator and proceeding by Alpha Polley and others for probate of purported subsequent last will and testament of Mary E Cline, deceased. From an order admitting to probate the instrument offered by Allen D. Cline, Mrs. Alpha Polley and others appealed to the circuit court and from an order admitting to probate the instrument offered by Mrs. Alpha Polley and others, Allen D. Cline appealed, to the circuit court, where the two appeals were consolidated. From a judgment rejecting the instrument offered by them as the will of Mary E. Cline, Mrs. Alpha Polley and others appeal.
Judgment reversed.
J. J. Moore and Henry J. Scott, both of Pikeville, for appellants.
Stratton & Stephenson and W. K. Steele, all of Pikeville, for appellees.
DRURY Commissioner.
From a judgment rejecting a paper offered by them as the will of Mrs. Mary Ford Cline, and approving the probate of one offered by appellees, Mrs. Alpha Polley et al. prosecute this appeal.
The Facts.
Appellee Allen D. Cline and Mary Ford were married October 25, 1893. February 10, 1932, Mrs. Cline died.
A paper tendered by Allen D. Cline was, on February 18, 1932, probated and ordered recorded as her will by the Pike county court, and this is it:
Linton Trivette." On January 19, 1993, Mrs. Alpha Polley et al. produced, and there was probated and recorded by the Pike county court, another will, and this is it:
On February 1, 1933, Allen D. Cline in his own right and as executor of Mary Cline appealed to the Pike Circuit court from the probate of the last-mentioned paper, and on February 19, 1933, Mrs. Alpha Polley et al. appealed to that court from the probate of the paper dated February 16, 1907. In each case the judgment was superseded and supersedeas served.
November 22, 1934, the two appeals were consolidated. November 24, 1934, the jury, having been unable to agree, was discharged.
On March 7, 1935, the second trial was begun, and on March 9, 1935, nine of the jury returned this verdict: "We the jury agree and find the paper read in evidence bearing date the 16 day of February, 1907, and witnessed by Lit Bowles and Linton Trivette, to be the last will of Mary Cline."
Judgment was entered pursuant to the verdict, and their motion and grounds for a new trial having been overruled, Mrs. Alpha Polley et al. appeal.
The Issue.
If the undated paper, to which Mrs. Cline's signature purports to have been made by her mark (hereinafter referred to as the last will), is valid, it supersedes the one dated February 16, 1907 (hereinafter referred to as the first will), and thus this last will and the circumstances surrounding it and its execution, etc., are the real issue presented, and as to it the issue narrows down to this single question:
Was It a Forgery?
Since this question of forgery also appears in the case of Mary Stone v. Elizabeth Stone, 263 Ky. 732, 93 S.W.2d 617, this day decided, much that is said in that opinion is applicable here, but will not be here repeated.
It will be observed this last will is not dated, but the failure to date it is rather convincing evidence of its genuineness, for a forger is careful to observe every detail; he omits nothing.
Osborn, in his work on Questioned Documents (2d Ed.), notes this characteristic, and on page 163 he says the forger appears to be unable to restrain the impulse to make it "a little more perfect." On page 164 Mr. Osborn says: Mr. Osborn adds on page 365 with reference to incompleteness and carelessness: "All of these qualities in writing are inconsistent with the mental condition accompanying the act of forgery." Each criminal thinks his will be the perfect crime; the forger knows he is committing a felony, and endeavors to omit no detail that would arouse suspicion and possibly lead to detection; his mind is alert, his brain on fire, and he would not have omitted the date. But let us return to the paper before us.
Its execution appears to have been witnessed by J. E. Polley and A. L. Trimble, and as the latter died suddenly in 1932, we have not the benefit of his testimony, and while J. E. Polley testifies to the due execution and attestation of this last will, it is asserted by Allen D. Cline that Polley's testimony is false and that the signature of A. L. Trimble is a forgery, so we shall at this point insert a summary of what he testified.
Polley's Testimony.
Mr. Polley is a son of the appellant Mrs. Alpha Polley, and a nephew of the testatrix. In 1931 he lived in Winchester but had formerly lived in Pikeville, and a few days previous to election day, November 3, 1931, he had come to Pikeville in the interest of Mr. Stephenson, a candidate for the Senate, and Mr. Hatcher, a candidate for railroad commissioner.
While there and possibly on Friday, October 30th, or Saturday, October 31st, he and John R. Rasnick visited his aunt Mrs. Cline, and she asked him to come back that afternoon when Mr. Cline was not there and bring Mr. A. L. Trimble with him. He did so, and Mrs. Cline gave him a key and told him to unlock a trunk there in her room and to get some papers, to which she pointed and told him one of them was her will. He then stated that on account of the operation for cancer of the breast, which had been performed on Mrs. Cline a short time before, she was not able to write her name, and that he and Mr. Trimble had to hold her up while she made her mark, and that he then signed his own name as witness. Polley testified he wrote his aunt's name and she made her mark; that in signing his own name he was standing with the will resting on a trunk; and that Mr. Trimble was standing when he signed the will and it was resting on a dresser. Polley testified Mrs. Cline signed this paper by making her mark in his presence and in the presence of Mr. Trimble, and that both of them signed in her presence and that of each other, and that all this was done with Mr. Trimble's fountain pen, which had green ink in it at the time. The haste of these men to get this done and get back into the political campaign is evidenced by the fact that in this paper as prepared the date had been left blank and they failed to fill in the date.
Evidence Supporting Polley.
In this record we find a number of checks signed by A. L. Trimble that have been paid and which bear the perforated cancellation made by the bank on which they were drawn. They bear various dates from March 14, 1931, to November 13, 1931, and all are written with green ink, and five are dated within two weeks of the execution of this last will, and these signatures look to us very much like the signature of A. L. Trimble on this will.
Mrs Hilda F. Coleman, a half-sister of the testatrix, testified...
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