#### Alcorn et al. v. Alcorn et al.

June 2, 1939.

W. J. Baxter, Judge.

John S. Deering and L. Saunders for appellants.

John C. Watts for appellees.

Opinion op the Court by

Judge Pulton

Affirming.

This appeal is from a judgment entered on a jury verdict finding a paper probated in the county court as *2tbe will of James Alcorn to be his last will. Tbe grounds of contest before tbe jury were that tbe testator did not have sufficient mental capacity to make a will and that be did not sign tbe will. It is now urged that the verdict of tbe jury was flagrantly against tbe evidence in finding against tbe appellants on both of these issues.

Tbe testator died on April 30,1936. At one time be lived in tbe state of Ohio, but bad returned to Jessamine County approximately a year and a half before his death. He owned a small farm of not more than 20 or 25 acres, worth something in tbe neighborhood of $1,000, and his daughter, Lizzie Alcorn, sole devisee in tbe will, resided with him and she bad -with her her young son. One of tbe testator’s sons also resided at tbe house with him for some time prior to bis death. Testator owed debts of approximately $400 and bad practically no personal property, so that tbe net value of tbe estate in controversy is approximately $600. Tbe family apparently existed largely on money received from relief agencies.

Tbe will was written on April 23, 1936, just one week before tbe testator’s death. On that day Lizzie Alcorn, sole devisee in tbe will, went to Nicholasville and bad tbe will drawn by an attorney, informing him as to tbe nature of tbe will her father desired to make. She returned home -with tbe will and she and tbe two attesting witnesses, Beulah Poore and Mrs. Harlan Whittaker, state positively that tbe testator signed tbe will in their presence.

On tbe issue of mental capacity, ten or more witnesses testify that a week or more before tbe testator’s death be was in a coma, unable to turn himself over in bed and unable to answer any questions. One of these witnesses was Dr. H. L. McClain, who says that be saw testator about a week before bis death, although be does not-fix tbe day definitely, and that at that time tbe testator was unconscious and in a coma as tbe result of nephritis accompanied by senile gangrene, and that be was unable to arouse him from a stupor. This witness was most positive that the testator was not capable of doing anything. One of testator’s sons and a neighbor testified that the testator told them bow be wanted his Eroperty divided and said that if they didn’t watch izzie she would get it all.

On tbe other band, Lizzie Alcorn, tbe devisee in tbe *3will, two of testator’s sons, the two attesting witnesses and two other witnesses testified that on the day the will was written and for two or three days thereafter, the testator’s mind was good, that he recognized the witnesses and talked to them. Dr. B. C. Gillespie, a witness for appellants, was called to see the testator professionally and was at the house several times shortly before his death, particularly on April 23, the day the will was written. He testifies that he saw nothing wrong with testator’s mind, that he asked testator questions on that day and he answered them. Dr. Gillespie consistently refused, however, to express any opinion on the testator’s capacity to make a will. Clarence Alcorn, a son of testator testifying against his own interest, stated that he saw the testator three or four days before his death and that his mind was perfectly good; that testator asked the witness to shave him and that he did so. Another son said his father’s mind was all right two weeks before his death.

From this statement, it is apparent that the evidence on the issue was sharply conflicting and was such as to make it peculiarly a question for the jury to decide. The numerical weight of the testimony is on the side of appellants, but it is not for us to say whether the jury was right or wrong in reaching the conclusion that testator had sufficient mental capacity to make this will. The jury is peculiarly the judge of such issues snd it is only where the verdict is so flagrantly against the evidence as to indicate that it was reached as a result of passion and prejudice on the part of the jury that we are at liberty to hold that the verdict reached by the jury is incorrect.

On the issue of whether or not the testator signed the will, Lizzie Alcorn and the two attesting witnesses testify very positively that he did sign the will in their presence. Dr. McClain and one of testator’s sons testified that they knew his handwriting and that the will was not signed by him. Dr. McClain also states that one of the attesting witnesses told him that she signed the will as a witness at her home. A mortgage executed by the testator was introduced in evidence and this original mortgage and the original will have been brought into this record and we are asked to say from an examination of the signature to the mortgage and the signature to the will that testator did not sign the will. It must be admitted that if it whs definitely established *4that the testator actually signed, the mortgage appearing in the record, we would have great difficulty in reconciling ourselves to believing that he also signed the will. The mortgage was executed ten years before the testator’s death and the signature thereto bears no resemblance to the signature to the will. The signature to the mortgage was evidently made by one who was barely capable of writing or at least wrote a very poor hand. The signature to the will bears"no resemblance whatever thereto and is written very clearly and legibly, although there is some indication of tremor in the hand that wrote it. _ It was not established definitely that testator actually signed the mortgage. The deputy clerk before whom the mortgage was acknowledged testifies that the mortgage was not signed before him by the testator, but merely acknowledged to be his act and deed. It was therefore possible that some one other than the mortgagor signed the mortgage' for him and that he merely acknowledged it.

Kentucky,. Statutes, Section 1649, provides that where handwriting of any person is proposed to be used for purposes of comparison, the genuineness of the writing proposed to be used must be proved by other than opinion evidence. . In other words, . satisfactory proof must be adduced that such writing to be used for comparison purposes was actually signed by the persons purporting to have signed it. This was not done here, and while it is most likely that the testator did sign the mortgage, we are not at liberty to assume that he did so and then, by comparing this mortgage with the will, ■hold that the verdict of the jury on this issue was flagrantly against the evidence. While we entertain some doubt that the testator actually signed the will in question, we are unwilling under the circumstances shown here to substitute our judgment for that , of the jury and ‘hold that the verdict Was flagrantly against the evidence on this issue.

It is suggested in appellant’s brief that the trial court erroneously permitted .appellee- to prove the value of the testator’s estate. No authority is cited and little stress is placed on this suggestion. We find that Page on Wills, 2d Edition, Section 766, says:

> “Evidence as to the'value of testator’s estate, including evidence as to the respective values of the different items of property devised to different persons, is admissible.”

*5Without deciding that evidence of this character is competent in all will contest cases, we may say that we fail to see wherein the substantial rights of the appellants were prejudiced in any way by the introduction of such proof in this case.

The judgment is affirmed.