Strong v. Abner

• Decision Date: 11 May 1937
• Citation: 105 S.W.2d 599,268 Ky. 502
• Parties: STRONG et al. v. ABNER et al.
• Court: Kentucky Court of Appeals

105 S.W.2d 599

268 Ky. 502

STRONG et al. v. ABNER et al.

Court of Appeals of Kentucky

May 11, 1937

Appeal from Circuit Court, Perry County.

Will contest proceeding by Lula Abner Strong and another against Susie Abner and others, on appeal from an order of the county court probating the will of Walker Abner. From a judgment for propounders, contestants appeal.

Reversed and remanded.

Faulkner & Faulkner, and W. E. Faulkner, all of Hazard, for appellants.

C. W Napier, Napier & Napier, and H. C. Johnson, all of Hazard for appellees.

CLAY Justice.

Walker Abner died at his home in Bowlingtown, Perry county, on May 4, 1928. He was a World War veteran, and was married twice after his return from service in the army. By his first wife he had one child, Iona Abner. By his second wife, Susie Hacker, formerly Susie Begley, he had two children, Lily Abner and Lucy Abner. Walker Abner was the owner of a small store, located near his home, some livestock and other items of personal property, together with several small tracts of land. On July 31, 1929, Susie Abner qualified as her husband's administratrix, and on October 30, 1929 brought suit to settle his estate. Walker Abner's landed estate was sold in that action to pay certain indebtedness asserted by Susie Abner and others. On September 26, 1932, an instrument of writing purporting to be the last will and testament of Walker Abner was lodged for probate in the office of the clerk of the Perry county court. Objections to the probate of the will were filed by Walker Abner's sisters, Clara Abner Jenkins and Lula Strong, who claimed the right to contest because of their being beneficiaries in a war risk policy which Walker Abner carried on his life. After a long hearing and some delay, the county court probated the will. From that order the contestants, Lula Strong and Clara Abner Jenkins appealed to the Perry circuit court, where a trial was had resulting in a verdict and judgment sustaining the will. The verdict and judgment were set aside and a new trial granted. On the second trial nine of the jurors returned a verdict sustaining the will, and contestants have appealed.

For the propounders Sherman Carmichael, who prepared the will, Pete Bowling and Jesse Bowling, whose names together with that of Beverly Clark, appear as witnesses on the will, all swear that they were present at the home of Walker Abner on April 10, 1928, and saw him execute the will. For the contestants the evidence is as follows: Mrs. Strong and Mrs. Jenkins, L. F. Brashear, D. H. Goodlette, and C. V. Cooper, all of whom claimed to be acquainted with Walker Abner's handwriting, testified that the disputed signature was not in his handwriting. C. V. Cooper and D. H. Goodlette, who also qualified as experts along with E. B. Lovern and H. R. Thornton, after examining the disputed signature and comparing it with Walker Abner's signature on a note and mortgage and signature cards in certain banks, gave it as their opinion that the disputed signature was not written by Walker Abner. On March 15, 1928, Walker Abner made a deed conveying certain tracts of land to his three children. Mrs. Strong testified that she was at Walker Abner's home April 30, 1928, and he told her that he had not willed anybody anything. R. M. Fitzpatrick, attorney at law, testified that sometime during the year 1932 Brown Begley, brother of Bob Begley, came to his house after Bob was sick and said that he wanted him to bring his typewriter and come over. He then went to Bob Begley's. Bob and Susie Abner were there. Bob, in the presence of Susie Abner, asked him about making a will. He said, "If there is a will made, there will be some damned dirty work done and I won't have anything to do with it." He told Bob that if he wanted to make a will to refer to Colwell's Form Book No. 2. Mrs. Maxine Walden testified that about the time of Robert Begley's death she visited Brown Begley's store. On opening the door she saw present Pete Bowling, Sherman Carmichael, Susie Abner, and Dall Begley. Sherman Carmichael, was doing some writing. When she came in they "gathered up their papers, kind of shuffled them around till nobody could see what they were doing." John Deaton, who claims to have been at Walker Abner's home on April 10th, never saw Pete Bowling, Jesse Bowling, Sherman Carmichael, Bev Clark, or Chester Sandlin there. Other witnesses, who saw Walker Abner shortly before his death, say that he referred to the fact that he had made deeds to his children, but said that he had made no will. In rebuttal Susie Abner, Pete Bowling, Sherman Carmichael, Jesse Bowling, John Dixon, Brown Begley, Emma Bowling, and others denied certain statements made by the witnesses for the contestants.

One of the main contentions of appellants is that the verdict is flagrantly against the evidence. In support of this position the following points are emphasized. Walker Abner made a deed to his children shortly before his death, and stated that he had made no will. After his death Susie Abner qualified as his administratrix and brought suit to settle his estate. According to some of the witnesses, Sherman Carmichael, Pete Bowling, Jesse Bowling, Beverly Clark, John Dixon, and Chester Sandlin did not meet at the home of Walker Abner on April 10, 1928. In the opinion of those who knew Walker Abner's handwriting, and of the experts who compared the handwriting with admitted signatures, the disputed signature is a forgery. Long after Walker Abner's death Susie Abner and her brother sought legal advice about the preparation of a will. Not only so, but there was evidence that Susie Abner, Pete Begley, Dall Begley, and Sherman Carmichael were at Brown Begley's and secretly engaged in preparing some papers. In addition to this it is claimed the disputed signature bears no resemblance whatever to the handwriting of Walker Abner. While the persuasive influence of the facts relied on must be conceded, there are certain potent facts that give another side to the picture. The most natural thing in the world for Walker Abner to have done would have been to give all that he had to his wife and children. In addition to this fact we have the positive evidence of Susie Abner, Sherman Carmichael, Pete Bowling, Jesse Bowling, and John Dixon that they were present and saw Walker Abner write his name on the will in question. It is at once apparent that the case turns on which set of witnesses is to be believed, and that always is a question for the jury and not for the courts. We are therefore constrained to hold that the verdict is not flagrantly against the evidence.

While C. A. Noble was on the stand, he offered to testify that, while Susie Abner was in the next room, Bob Begley wanted to know if, in his opinion, a will would hold the property of the deceased, and he got the impression that Bob wanted to prepare a will conveying Susie Abner the property of Walker Abner, who was then deceased. The argument is that Bob Begley was the brother of Susie Abner, and she was near enough to hear the conversation. The difficulty with this position is that the witness himself, on being asked if Susie Abner was close enough to hear the conversation, replied, "I don't think so." Clearly, the exclusion of the offered evidence was proper.

The court refused to permit C. A. Noble to give his opinion as to whether the disputed signature was in the handwriting of Walker Abner. It was shown that Mr. Noble was a lawyer and that he had several cases involving the question of handwriting, and had also served as circuit court clerk. It is not the business of the circuit court clerk to know or identify the handwriting of parties to an action, or their attorneys, and that experience, even though it be supplemented by one's experience in the handling of a few cases involving the question of handwriting, is not sufficient to qualify one to testify as an expert on handwriting.

While H. R. Thornton and C. V. Cooper were on the stand they were asked to compare the signatures of Susie Abner with the signature on the alleged will, and then to state whether or not in their opinion the same person who signed the administratrix' bond, note, and mortgage, signed the name of Walker Abner to the alleged will. Formerly, proof of handwriting by comparison was not permissible, Andrews v. Hayden's Adm'r, 88 Ky. 455, 11 S.W. 428, 10 Ky.Law Rep. 1049, but, since the enactment of section 1649, Kentucky Statutes, other handwriting of a person whose handwriting is in dispute is admissible for the purpose of comparison. In our opinion the statute deals only with the party whose handwriting is in dispute, and in a case of this kind applies only to the testator and not to some one else.

After Robert Fitzpatrick had testified that he had done some pension work for Mrs. Abner, counsel for propounders moved the court to exclude his evidence from the jury on the ground that he was Mrs. Abner's attorney and had also been adjudged by a court of competent jurisdiction incompetent to manage his own affairs. Counsel for contestants objected to the attorney's arguing the case to the jury in the form of an objection. In overruling the motion the court told the jury that they were the judges of the weight to be given the testimony; that no evidence had been introduced to the effect that the witness was incompetent and they should not consider that statement for any purpose. Thereupon the witness was asked if he did not know that he had been adjudged incompetent by the Perry county court and a committee appointed for him. Over objection he replied, "It was by orders of the Veterans' Bureau, because at times I am unable to handle money." Thereupon, the witness, over the objection of contestants, was required to read an order dated ...