Rowland v. Holt

• Decision Date: 30 January 1934
• Citation: 70 S.W.2d 5,253 Ky. 718
• Parties: ROWLAND et al. v. HOLT.
• Court: Kentucky Court of Appeals

70 S.W.2d 5

253 Ky. 718

ROWLAND et al. v. HOLT.

Court of Appeals of Kentucky

January 30, 1934

As Modified on Denial of Rehearing April 24, 1934.

Appeal from Circuit Court, Carlisle County.

Proceeding by Otto Holt to establish alleged lost or destroyed will of R. W. Rowland, deceased, and to obtain probate of will opposed by S. I. Rowland and others. From a judgment for the proponent, the contestants appeal.

Affirmed.

Wheeler Wheeler & Shelbourne, of Paducah, for appellants.

M. C Anderson, of Wickliffe, and R. O. Willingham, of Bardwell, for appellee.

RATLIFF Justice.

R. W. Rowland, a resident of Carlisle county, Ky. died on January 20, 1932, at the age of 68 years. His wife died several years before he died. He left no children. He was survived by three brothers, a sister, and children of a sister who had predeceased him. Otto Holt, appellee herein, was a nephew of decedent's wife, and decedent and his wife took Otto into their home when he was four or five years of age and raised him to manhood. After his marriage he moved to Detroit, Mich., where he had been living some time prior to and at the time of the death of decedent. Within a few days after the death of decedent, Otto Holt, the appellee herein, filed in the Carlisle county court his petition and notification alleging that R. W. Rowland died testate naming Otto Holt in his last will as the sole beneficiary of his estate. Being unable to find any will, appellee filed an amended petition in which he alleged that the will of R. W. Rowland was lost or destroyed, and that he would introduce proof to establish the lost instrument. Appellants filed their answer denying that decedent left a last will and last testament, but alleged that he died intestate, and that his brothers and sister and the children of the deceased sister were entitled to his estate under the statutes of descent and distribution (Ky. St. § 1393 et seq.). Appellants, defendants below, offered no proof in the county court, and, at the conclusion of the evidence of appellee, an order was entered by the county court adjudging that decedent died testate leaving a will which was duly and regularly executed in the year 1931, and further found and adjudged that the will was lost or could not be produced, filed, and recorded; and further adjudging that Otto Holt was the sole beneficiary named in the will and was entitled to all the property of decedent after the payment of his debts.

An appeal to the Carlisle circuit court was prosecuted by appellants which was tried before a jury at the June term, 1932, and the jury returned its verdict finding that there was a will and that the paper offered as a substitute for the will to be the last will of decedent. Judgment was rendered upon this verdict in substance the same as that in the county court. A motion and grounds for a new trial were overruled. Hence this appeal.

A number of alleged errors were assigned in the motion and grounds for a new trial, but in appellant's brief it is only urged that the court erred in giving certain instructions and in refusing to give certain other instructions offered by appellants; that the verdict of the jury is contrary to the law and contrary to the instructions given by the court; and that the verdict is flagrantly against the weight of the evidence.

To establish a lost will three essential requirements are necessary. (1) Proof of due execution of the will; (2) contents of the will; and (3) continued existence of the will unrevoked by the testator. We will address ourselves to items (1) and (2) jointly because they are sought to be established principally by the same evidence. It is apparent from the record that the testator made two wills, the first of which having been witnessed by L.

B. Jones in the presence of testator and R. O. Willingham; and the second one witnessed by C. H. Chumley and R. O. Willingham. L. B. Jones testified that, some time within the year 1931, R. W. Rowland, the decedent, called on him to sign a paper as a witness to his will, and that he signed the will as witness in Willingham's office; that Otto Holt was named in the will as the sole beneficiary; that some time thereafter the decedent told him that he had destroyed that will. It is testified by a number of other witnesses that decedent made the statement that his brothers got mad because he made the will and he got mad and tore up the will in their presence. In this he is corroborated by his brothers. Thus it is satisfactorily shown that the will witnessed by L. B. Jones and Willingham was destroyed. Then the question to be determined is whether or not decedent executed a later will. It is insisted for appellee that he executed a second will sought to be established herein, which was witnessed by C. H. Chumley and R. O. Willingham. C. H. Chumley testified that, some time in the summer of the year 1931, the decedent came to him on the street in Bardwell, Ky. and asked him to witness a paper for him which he stated to be his will, and that he went with decedent to the office of R. O. Willingham, and, while going up the steps, he (decedent) said that the boys (meaning his brothers) got mad at him because he made a will to Otto; that they wanted to sell him the Jim Harper farm, and that he was going to let them have the farm, but he was going to make another will; and further said: "I shouldn't have done it, but I got mad and went out there and tore it up (meaning the will) in front of Joe and Simon's face (meaning Joe Rowland and Simon Rowland, decedent's brothers) and I want to make another will and want you to sign it." When they got into Willingham's office decedent produced the will which the witness read, and Otto Holt only was named beneficiary of the will; that the testator signed the will in the presence of the witness Chumley, and also in the presence of R. O. Willingham, the other attesting witness, and that he and Willingham both attested the will in the presence of each other and in the presence of the decedent, testator; that after the will was signed Willingham reached it to the testator, and that he had not seen the will since that time. R. O. Willingham stated that he wrote a will for the decedent in which Otto Holt was named the sole beneficiary of decedent's estate, and that this will was prepared and witnessed by him in the spring or summer of 1931. However, he further stated that he did not remember preparing or witnessing but one will for decedent, but stated that Chumley and Jones both witnessed a will of decedent in his office, and that the will that Chumley witnessed first directed that his just debts, if any, be paid, and then the residue of his property go to Otto Holt; that this will was signed by decedent in his presence and in the presence of the other attesting witness, Chumley, and attested by both of them in the presence of decedent, testator, and the will then turned over to decedent; that he had not seen the will since that time; that this occurred on a drizzly, wet day. Ed Yates, circuit court clerk for Carlisle county, stated that, some time in the summer or fall of 1931, decedent was talking to him about "Cy" (meaning Otto) and said to him, "'Ed, I have just made a will just like the other one,' and I said 'That means all your debts to be paid and the rest go to "Cy" or Otto,' and he said 'Yes, that is the way it is."' This, he stated, was on a drizzly, wet day. The witness further stated that decedent had talked to him about the contents of the other will and said that the boys were mad and he went up there and took the will and tore it up in their faces.

On the other hand, in contradiction to the evidence of the proponents of the will, we have the evidence of S. I. Rowland and J. N. Rowland (who are also referred to in the record as Simon and Joe Rowland, brothers of decedent) and Martha McGary, a sister; all testified that in November, 1931, just prior to the death of decedent the following January, decedent tore up and destroyed the first will referred to, to which the names of L. B. Jones and W. H. Chumley appeared as witnesses and decedent said, "Boys, I have destroyed my will and there will be no more wills." Mrs. McGary, sister of decedent, testified that she had a conversation with decedent on January 3, just preceding his death on January 19, and she asked him if he had made a will, and he said he had not since the one he tore up, and that he would never make another one.

A will may be admitted to probate upon the testimony of either one of the subscribing witnesses who also proves the attestation by the other. Doyle v. Brady, 170 Ky. 316, 185 S.W 1133. And the due execution of a will may be proven by one of the attesting witnesses if he can testify to compliance with all the requirements of the statutes. One of the subscribing witnesses may prove the execution of a will and its due attestation by himself and others, and, if his testimony is satisfactory, it is sufficient. Tackett v. Tackett, 204 Ky. 831, 265 S.W. 336. And one of the witnesses may prove the attestation, acknowledgment, and signature, and thus probate the will. Tackett v. Tackett, supra. Where a subscribing witness to a will does not recollect that he subscribed in the presence of the testator, that fact may be proved by other witnesses. Gwinn v. Radford, 12 Ky. (2 Litt.) 137. The witness Willingham stated that he did not remember definitely of having witnessed but the one will of decedent, but the witness Chumley testified positively that Willingham did attest the same will which he attested, and this was after decedent had told Chumley that he had torn up the former will and was making this will in its stead. Then by analogy of reason, in light of the rule above quoted in Gwinn v. Radford, supra, the attestation of...