Reed v. Hendrix's Ex'r

• Decision Date: 22 March 1918
• Citation: 201 S.W. 482,180 Ky. 57
• Parties: REED ET AL. v. HENDRIX'S EX'R.
• Court: Kentucky Court of Appeals

201 S.W. 482

180 Ky. 57

REED ET AL. v. HENDRIX'S EX'R.

Court of Appeals of Kentucky.

March 22, 1918

Appeal from Circuit Court, Bath County.

Suit by Nancy Wilson Hendrix's executor against Mary Reed and others. Decree for the former, and the latter appeal. Affirmed.

John A Daugherty and Howard Gudgell, both of Owingsville, and John P. McCartney, of Flemingsburg, for appellants.

C. W Goodpaster, of Owingsville, Robt. Winn and W. B. White, both of Mt. Sterling, and J. J. Nesbitt, of Owingsville, for appellee.

MILLER J.

A paper dated May 13, 1911, and purporting to be the will of Nancy Wilson Hendrix, was offered for probate in the Bath county court. The county court refused to probate the paper, and an appeal was taken to the Bath circuit court. At the close of the testimony for the propounders of the will in the circuit court the defendants, who are the appellants here, moved the court to direct the jury to find the paper was not the will of Nancy Wilson Hendrix, deceased; but the motion was overruled, and the defendants declining to offer any proof, the court directed the jury to find the paper to be the last will and testament of Nancy Wilson Hendrix, deceased, which was accordingly done. From a judgment based upon that verdict the defendants prosecute this appeal.

The will, including the signature and the attesting clause signed by the witnesses, was written by Charles Wilson, a farmer and former justice of the peace; and so much thereof as throws any light upon the merits of this contest reads as follows:

"Be it remembered that I, Nancy Wilson Hendrix, of Bethel, Bath county, Kentucky, do make this my last will and testament in manner following. That is to say:

First. I desire the payment of all my just debts with convenient speed."

(The second, third, fourth, and fifth clauses are unimportant here and are omitted.)

"Sixth, I appoint my nephew Walter Whaley executor of this my will.

In testimony whereof I, the above named testatrix have hereunto set my name this 13th day of May in the year of our Lord one thousand nine hundred and eleven.

Nancy Wilson her X mark Whaley.

Then and there signed and published by the testatrix Nancy Wilson Hendrix, as and for her last will, in the presence of us, who, at her request, and in her presence, and in the presence of each other, have hereto set our names as witnesses.

Robt. Crouch.

Sanford Ramey."

It will be observed that the name subscribed to the will is Nancy Wilson Whaley, not Nancy Wilson Hendrix, the correct name of the testatrix.

Section 4828 of the Kentucky Statutes reads as follows:

"No will shall be valid unless it is in writing with the name of the testator subscribed thereto by himself, or by some other person in his presence and by his direction; and, moreover, if not wholly written by the testator, the subscription shall be made or the will acknowledged by him in the presence of at least two credible witnesses, who shall subscribe the will with their names in the presence of the testator."

Appellants insist that the paper should not have been admitted to probate because: (1) It was not signed with the name of the testatrix, Nancy Wilson Hendrix; and (2) if the name Nancy Wilson Whaley should be treated as the name of the testatrix it was not written by her, or by any one in her presence and by her direction; and (3) neither was the will acknowledged by the testatrix in the presence of the two witnesses. The proof shows that Mrs. Hendrix was the widow of George Hendrix; that she was 75 years old when she made her will; and that she then lived with Mrs. Lucy Whaley, the wife of Mrs. Hendrix's nephew. Perhaps a week before the will was executed Mrs. Hendrix told Robert Crouch, one of the witnesses, that she had made her will, and wanted Crouch and Sanford Ramey, Crouch's father-in-law, to witness it. Upon being notified to call at Mrs. Whaley's for the purpose of witnessing the will, Crouch and Ramey did so. What happened on that occasion is narrated by Crouch and Ramey, the only surviving eyewitnesses. Crouch testified as follows:

"Q. Who was in the room when you went there? A. Aunt Nancy Hendrix and Charlie Wilson. Q. What was said, if anything, when you went in the room where these people were? A. Well, as I remember they spoke, and he said, 'Gentlemen, I suppose you have come to witness the will?' Q. Who said that? A. Mr. Wilson. Q. Then what occurred after that? A. Mr. Wilson told me where to sign it, and I did so and got up, and Mr. Ramey signed it, and he told us that we were excused. Q. Was Mrs. Hendrix present? A. Yes, sir; she was there. Q. And you were both present when the other signed it? A. Yes, sir. Q. I will ask you to examine this paper and state whether or not that is the paper that you signed at Mrs. Whaley's at the time about which you have testified. A. (witness examines paper). Yes, sir; it is. Q. Is that your signature? A. Yes, sir. Q. I will ask you to take this paper and exhibit to the jury how it was folded. A. In just about the shape you have it there. Q. Read to the jury the language of the will that was visible to the eye when you signed it. Q. Were there any blank spaces above your signature? A. No, sir. Q. If the court will permit me, I will read the portion that was visible to the eye as it is folded now and as you say was folded when you signed it.

By the Court: Go ahead.

'Nine hundred and eleven. Nancy Wilson her X mark Hendrix. Then and there signed and published by the testatrix Nancy Wilson Hendrix, as and for her last will, in the presence of us, who, at her request, and in her presence, and in the presence of each other, have hereto set our names as witnesses.' "

Cross-examined: "Q. When you signed this paper, do you remember any particular part of it that was exhibited to you? A. Just about what I showed you there. Q. Do you remember any signature signed to it? A. No, sir. Q. This paper was just handed to you, and you signed it? A. Yes, sir. Q. While Mr. White read the names of Nancy Wilson Whaley, you don't remember of seeing anything of that kind? A. No, sir. Q. You have detailed all that occurred there and all that was said? A. Yes, sir."

Re-examined: "Q. Did you ever at any time witness any other paper or will for Mrs. Nancy Wilson Hendrix? A. No, sir. Q. You never undertook to read anything above your signature? A. No, sir. Q. And nothing was read to you above your signature? A. No, sir. Q. Did you look at the paper with a view of ascertaining what was above your signature? A. No, sir; I did not."

Recrossed: "Q. Do you know whether or not it was folded as indicated? A. Yes, sir; just like he had it a while ago."

Re-examined: "Q. When you and Mr. Ramey started out, what were Mr. Wilson and Mrs. Hendrix doing, if anything? A. She had the pen in her hand, and he was standing by the machine. Q. Where was the paper at that time? A. It was on the sewing machine. Q. Where was Mrs. Hendrix standing with reference to the sewing machine? A. The sewing machine was right here (indicating), and she had hold of a chair by one hand and was walking around to the sewing machine. Q. After you signed it, tell the jury what Mrs. Hendrix did.

A. She didn't say anything. We were told that we were excused, and when we were walking out she had the pen in one hand and had hold of the chair with one hand. Q. What chair? A. The one we sat in when we signed the paper. Q. Did she change her position from the time you all signed it until you started out the door? A. She was standing there when we signed it. Q. Do you know how she got the pen? A. Mr. Wilson handed it to her. Q. Where did he get it just before he handed it to Mrs. Hendrix? A. Mr. Ramey handed him the pen, you know."

Recrossed: "Q. Mr. Wilson had told you that you were excused? A. Yes, sir. Q. And you saw her do nothing with that pen? A. No, sir.

By the Court: What did she say? A. She didn't say anything."

Ramey, the other witness, testified substantially to the same effect as follows:

"Q. Who did you find at Mrs. Whaley's house when you got there? A. Mr. Charlie Wilson. Q. Who else? A. Aunt Nancy Hendrix. Q. That is Nancy Wilson Hendrix? A. Yes, sir. Q. Tell the jury what occurred after you got there. A. When we got there they were both in the room--Mr. Wilson and Mrs. Hendrix--and Mr. Wilson said, 'Men, you have come to witness the will?' and we told him, 'Yes'; and we sat down to the table and witnessed the will.

By the Court: Was that in the presence of the old lady? A. Yes, sir.

Q. She was present when Mr. Wilson said, 'Men, you have come to witness the will'? A. Yes, sir. Q. And after that what did you and Mr. Crouch do? A. He wrote his name first, and then I wrote mine. Q. Then what did you do? A. I laid the pen on the table, or give it to Mr. Wilson, one, I don't remember which; anyhow, he said, 'Gentlemen, you are excused,' and we left. Q. Do you know what Mr. Wilson did with the pen? A. Him or me, one, give it to Aunt Nancy; I think, though, he did. Q. What was Aunt Nancy doing when you went out of the door? A. The chair was like this (indicating), and she had the pen in one hand and hold of the chair with the other, going around to take the chair. Q. Is Mr. Charlie Wilson living or dead? A. He is dead. Q. When did he die? A. Seven or eight years ago. Q. Did he die before or after Mrs. Hendrix? A. Before. Q. What was Mr. Wilson's business? A. He was a magistrate and kind of lawyer for the people. Q. Wrote their contracts, deeds, and wills for people in that neighborhood? A. Yes, sir. Q. I will ask you to examine this paper, and ask you whether or not that is the paper you signed in the presence of Mrs. Nancy Wilson Hendrix? A. (witness examines paper). Yes, sir; that's it. Q. Did you sign that in the presence of Robert Crouch?...