Tackett v. Tackett

• Court: Kentucky Court of Appeals
• Writing for the Court: SAMPSON, C.J.
• Citation: Tackett v. Tackett, 204 Ky. 831, 265 S.W. 336 (Ky. Ct. App. 1924)
• Decision Date: 10 October 1924
• Parties: TACKETT v. TACKETT.

265 S.W. 336

204 Ky. 831

TACKETT v. TACKETT.

Court of Appeals of Kentucky.

October 10, 1924

Appeal from Circuit Court, Carter County.

In the matter of the estate of Julia A. Tackett, deceased. On contest of will by Ed. Tackett. From judgment against will T. L. Tackett appeals. Reversed for new trial.

Waugh &amp Howerton, of Ashland, for appellant.

G. W E. Wolfford, of Grayson, for appellee.

SAMPSON C.J.

A paper purporting to be the last will and testament of Mrs. Julia A Tackett, deceased, was probated in the Carter county court, and from that order an appeal was prosecuted to the Carter circuit court, where one of her sons, Ed. Tackett, contested the will. The paper in contest reads as follows:

"This April 6th, 1915.

Know all men by these presence that I, J. A. Tackett of Enterprise, Carter Co., Ky. being of sound mind and memory do make this my last will and testament: After all my just debts and funeral expenses are paid I hereby give and devise unto by beloved daughter, Minty Gray ($300.00) three hundred dollars, and to my son Paul Tackett ($250.00) two hundred and fifty dollars, and to T. L. Tackett the remainder of all my real and personal property of which I am possessed at my decease.

J. A. Tackett.

S. W. Loomic.

We the above-named witnesses certify that we were present and saw J. A. Tackett sign her name to the above instrument; we each signed it in her presence of each of the (witnesses).

This April 6, 1915. Minty Gray,

Anna Tackett."

The grounds of contest alleged in the petition on appeal were (1) that the will is and was a forgery, and (2) that it was not executed in the way and manner provided by our statute. Issue was joined by an answer controverting the averments of the petition. Two jury trials were had, the first one, resulting in a verdict sustaining the will, was set aside on motion for a new trial. The second verdict was directed by the court in favor of the contestant, and a judgment was entered thereon, holding the paper not to be the last will and testament of Julia A. Tackett.

The contestee prosecutes this appeal urging: (1) That the trial court should have sustained his motion to substitute the verdict of the jury in the first trial, sustaining the will, for that on the second trial; (2) court erred as a matter of law in setting aside the verdict and judgment in the first trial; (3) appellant made out a case on the first trial of due execution of the will, and the verdict and judgment should not have been set aside.

The evidence upon both trials is very conflicting and generally unsatisfactory. Pursuing the general rule of practice, T. L. Tackett, the propounder of the will, introduced his evidence first. He was the principal beneficiary. He says he did not see the will written or signed by the testatrix or by either of the witnesses, but he says the signature of J. A. Tackett is that of his deceased wife, Mrs. Julia A. Tackett, and that the name Minty Gray, a married daughter, was her proper signature, and that Anna Tackett, another daughter, was her proper signature. Further testifying he stated that the testatrix shortly before she died told him that she had some papers at the Peoples' Bank in Olive Hill, which he should get upon her death. Eight months after the death of the testatrix he went to the bank and got the bundle of papers containing thrift stamps and other things, which he carried home, and among these papers he found the paper which he later had probated as the last will of his wife; that he did not know who wrote it, or when it was written. He then called some other witnesses, who stated that the signature to the will was that of the testatrix, and also proved by his infant son that some years before his mother died he had seen a man who generally wrote wills and deeds in that part of the country, in his mother's room at the house writing a paper, and that there were other persons present. They also proved by another son that his mother had said to him that she had papers at the bank which he should get upon her death. At the time of the trial, Anna Tackett, one of the witnesses to the testamentary paper, was dead. The other witness, Minty Gray, did not appear at the trial, she being sick, as it is stated. There is an affidavit in the record showing that at one time the contestant proposed to take her deposition and to prove by her that she did not witness the will of her mother and did not know that such a will had been made, but when the contestant and his attorney went to the house of Minty Gray to take her deposition, they found contestee, T. L. Tackett there, and was informed by him that his daughter was not physically able to give her deposition, and thereupon the taking of her deposition was temporarily abandoned. The same affidavit states, concerning Minty Gray, "that this witness is one of the beneficiaries of the will, and is the only person living whose name appears to said will as a witness, and that he (affiant) will prove by this witness that she never signed said will as a witness, and that the signature to said will purporting to be her signature is a forgery, and that she never signed said will at any time, and never saw it in her life."

Contestant called several witnesses to show that the will was a forgery among them was A. M. Johnson, a notary public who stated he wrote the paper in contest for T. L. Tackett many months after the death of testatrix; that appellant came to him and asked him to write a will, and that he put...