Rash v. Peoples Deposit Bank & Trust Co.

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: SIMONS, ALLEN and MILLER, Circuit
• Citation: Rash v. Peoples Deposit Bank & Trust Co., 192 F.2d 470 (6th Cir. 1951)
• Decision Date: 09 November 1951
• Docket Number: No. 11317.,11317.
• Parties: RASH v. PEOPLES DEPOSIT BANK & TRUST CO. et al.

192 F.2d 470 (1951)

RASH v. PEOPLES DEPOSIT BANK & TRUST CO. et al.

No. 11317.

United States Court of Appeals Sixth Circuit.

November 9, 1951.

J. A. Edge and Lena M. Craig, Lexington, Ky. (Lena M. Craig and J. A. Edge, Lexington, Ky., on the brief), for appellant.

John L. Davis, Lexington, Ky. (William T. Baldwin and Raymond Connell, Paris, Ky., on the brief), for appellee.

Before SIMONS, ALLEN and MILLER, Circuit Judges.

SIMONS, Circuit Judge.

The appellant sought specific performance of a lost contract claimed to have been executed by her and one Clarence Jones Wright in May, 1926, by the terms of which she claims he agreed, in consideration of services to be rendered by her until his death, to give her by will or otherwise his entire estate. The District Judge concluded that under the tests applicable generally, and in Kentucky, the appellant had failed to establish by evidence of the clearest, most conclusive, and satisfactory nature, the existence, content, or loss of the contract upon which she relied and that her claim must, therefore, be denied. This appeal followed.

Error in the proceedings below was alleged to result from the failure of the court to grant the appellant a jury trial, failure to permit her to testify to statements of the deceased in respect to the execution of the alleged contract and failure of the evidence to sustain the findings and judgment of the court: We find no occasion to consider an allegation that the contract, if made, contravenes no principle of law, equity, or public policy, since the decision is based primarily upon failure to prove the contract, nor alleged error in denying a motion for a new trial, since that is reviewable only for an abuse of discretion, — and no such abuse is perceived.

The basic relief sought was the specific performance of a contract. As a corollary thereto, the appellant also sought a decree setting aside a prior will made by Wright, a declaration of its invalidity and that it be expunged from the records of the Bourbon County Court. These remedies are so clearly equitable, calling for judgment of the Chancellor, upon assumed or established facts, that we find no error in denying the appellant a trial by jury.

The rule in Kentucky as to the inadmissibility of conversations between a deceased person and a litigant seeking to establish a claim upon them is identical with that recognized in almost all jurisdictions. Inadmissibility may, however, be waived by the defendant either by interrogation at the trial or in depositions which inquire into statements of the deceased. Such waiver is asserted by the appellant because of interrogatories propounded by Wright's executor to the appellant, in seeking clarification of pleadings under Rule 26, Federal Rules of Civil Procedure, 28 U.S. C.A. These interrogatories were also propounded for the purpose of discovery and the...