Rowland v. Miller's Adm'r

• Decision Date: 09 November 1956
• Citation: 307 S.W.2d 3
• Parties: Bertha ROWLAND et al., Appellants, v. Minnie Dearing MILLER'S ADM'R (Louisville Trust Co.), et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 3

307 S.W.2d 3

Bertha ROWLAND et al., Appellants, v. Minnie Dearing MILLER'S ADM'R (Louisville Trust Co.), et

al., Appellees.

Court of Appeals of Kentucky.

Nov. 9, 1956.

Rehearing Denied Dec. 13, 1957.

Woodward, Hobson & Fulton, R. I. McIntosh, Louisville, for appellants.

Dodd & Dodd, Frank J. Dougherty, Jr., Louisville, for appellees.

STANLEY, Commissioner.

This is an appeal from a summary judgment in a will contest. It was rendered upon the record of the probate proceedings in the county court.

Two wills, bearing the same date, May 2, 1942, were executed by the late Mrs. Minnie Dearing Miller. One was holographic and the other a typed, witnessed will. There is no material difference in their substance. Both wills bequeathed the residuary of the estate to the testatrix' niece, Nancy D. Hill. Objection to probate of either instrument was made in the county court by another niece and a nephew of the testatrix. A special commissioner received evidence orally and by deposition on the issues of mental incapacity and undue influence and filed a report reviewing and evaluating the evidence and expressing the opinion that the proof was not sufficient to sustain the objections. His recommendation that the witnessed will be probated wss accepted and that instrument was probated. The Louisville Trust Company was appointed administrator with will annexed.

The objectors in the county court seasonably filed an appeal to the circuit court in which they charged that the decedent was not competent to make the will and that it was executed as the result of undue influence on the part of Nancy D. Hill. All the original papers of the county court were transmitted to the circuit clerk. These included a transcript of the testimony heard by the special commissioner, his report, and the judgment thereon.

The appellees (so designated in the circuit court) or contestees (a designation herein as more distinctive) filed a motion for a summary judgment. The motion stated the proceedings in the county court and the fact that the transcript of the entire record was before the circuit court. The grounds of the motion were that the evidence in that transcript 'with all inferences that a jury could justifiably draw from it, is insufficient to support a verdict for the appellants as to the lack of testamentary capacity of decedent so that such a verdict, if rendered on this evidence would be set aside, and by reason thereof, the appellees are entitled to have their motion for a summary judgment sustained herein to the same extent as if it were a motion for a peremptory instruction.' The same grounds were stated as to the insufficiency of the evidence to support a verdict that the will was obtained by undue influence.

The judgment, following the order sustaining the motion, recites that the record before the court was conclusive that 'there is no genuine issue of any material fact challenged' and that it would be insufficient to support a verdict for appellants as to either grounds of contest 'and appellants have a right to such a judgment as a matter of law.'

Civil Rule 56.03 authorizes a summary judgment 'if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'

In the present case the summary judgment, as we have said, rests on the evidence taken in the county court on the objection to probate of the instrument. Civil Rule 72.03 expressly declares that all appeals from the county and other inferior courts 'shall be tried anew, as if no judgment had been rendered.' This is the same as KRS 25.070. It has long been held, as stated in Hall v. Hall, 153 Ky. 379, 155 S.W. 755, 757, not only that the trial of a will contest on appeal is de novo but 'the proceedings in the county court should not be read to the jury, as the jury are to decide the case from the evidence before them, and not from the judgment of the county court which is entitled to no weight on the jury trial.' KRS 394.270, by negation, or per contra, prohibits the use of such evidence in the circuit court unless the witnesses are unavailable.

Nevertheless, the rationale behind the acceptable use of depositions filed in a former action that has been dismissed which involved the same subject matter as the action at bar or of answers to interrogatories or the like (6 Moore, Rule 56, p. 2060) warrants the use in considering a motion for a summary judgment of the evidence heard in the probate court. 6 Moore, Rule 46, p. 2127; Halterman v. Louisville Bridge & Iron Co., Ky., 280 S.W.2d 175. Of course, the opinion and report of the trial commissioner or the judgment of the county court cannot be regarded and should have no influence. The party adverse to the movant may, of course, by opposing affidavits or otherwise show the court that there is other evidence available that may be produced on the de novo trial. But in this case there were no countervailing affidavits or demonstration other than the record of the county court, nor was there any suggestion of additional accessible evidence for the contestants.

Our Rule 56 is the same as Federal Civil Rule 56, 28 U.S.C.A., and substantially like the rules in other states which have adopted the reformed practice. The courts have repeatedly admonished that the rule should be cautiously invoked; that it does not authorize the adjudication of factual issues but only authorizes the court by a pretrial sifting to penetrate the allegations of fact and to look to an evidential source or material extraneous to the pleadings solely to discover and determine whether there is an issue of fact to be tried. To that end, the supporting affidavits and depositions are to be carefully scrutinized by the court. Moreover, since the burden of establishing the nonexistence of any genuine issue of fact is upon the moving party, all doubts are to be resolved against him. If the evidentiary material on the one side and the other are directly opposed, the case must go on trial. Norwood Morris Plan Co. v. McCarthy, 295 Mass. 597, 4 N.E.2d 450, 107 A.L.R. 1215. It is not the purpose of the rule, as has been often declared, to cut litigants off from their right of trial by jury if they have issues to try. Ohlinger's Federal Practice, Vol. 3-A, Notes to Rule 56; 6 Moore's Federal Practice, Vol. 6, Rule 56, pp. 2028, 2101, et seq.; 41 Am.Jur., Pleading, Sec. 342. This court is in accord. Clay, CR 56; Watts v. Carrs Fork Coal Co., Ky., 275 S.W.2d 431; Hoskins' Adm'r v. Kentucky Ridge Coal Co., Ky., 277 S.W.2d 57; Continental Casualty Co. v. Belknap Hdw. & Mfg. Co., Ky., 281 S.W.2d 914, 915; Bell v. Harmon, Ky., 284 S.W.2d 812.

Although the motion for a summary judgment is analogous to a motion for a directed verdict (Moore, Rule 56, pp. 2101, 2128), the consideration to be given the motions is not the same. There is a great difference between discovering whether there be an issue of fact and deciding such an issue. Farrall v. District of Columbia Amateur Athletic Union, 80 U.S.App.D.C. 396, 153 F.2d 647. And, we may add, for the judge to take a case from the court before the evidence is heard is an order more delicate and one which requires greater judicial discernment than for the judge to take the case away from the jury after he has heard the evidence.

In Halterman v. Louisville Bridge & Iron Co., Ky., 280 S.W.2d 175, 178, we took note that there are some Federal cases holding that a summary judgment is warranted where the evidence is such as to 'require' or 'compel' a directed verdict for the moving party and regarded such construction of Rule 56 as merely one of several approaches to the main question on a motion for a summary judgment, but stated, 'Regardless of which approach is used, it seems that the rule should be that if there is any reasonable doubt on the question, a summary judgment should not be granted.' We held in the case that the evidence on a previous trial and in pretrial depositions upon which the summary judgment was entered revealed there was a genuine issue of fact concerning the breach of an implied warranty and found it unnecessary to decide upon the sufficiency of the evidence to authorize a directed verdict. This was followed in Proctor v. Cranfill, Ky., 280 S.W.2d 494.

We have found no better statement of the law...