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"Eut, independently of those reasons, the qize a new trial, the court properly sustained witness Adams was introduced by the defend the demurrer to the petition, and properly ant, and testified in his behalf at the trial, and dismissed it upon failure to amend; and its the slightest diligence would have discovered judgment in doing so is, therefore, affirmed. his testimony now relied on to obtain a new trial. In 16 Corpus Juris, 1187, the text says: 'Generally newly discovered evidence is not deemed to include testimony of a witness who was examined at the trial, or who was present and might have been examined. The rule of

GOOSLING et al. v, PINSON et al. due diligence renders such evidence unavailable.' And on page 1193 it is said: 'Denials

(Court of Appeals of Kentucky. March 2, of motions for new trials on the ground of

1923.) newly discovered evidence are generally based upon lack of diligence to procure and produce 1. Wills 439, 470-Intention of testator evidence known to defendant prior to the trial;

controls as ascertained from entire instruor upon neglect to ascertain what testimony ment. witnesses would have given.' Cases from this

The fundamental rule for the construction court sustaining the rule of practice are: Ty of a will is to ascertain the intention of testaree v. Commonwealth, 160 Ky. 706; Clair v tor, and apply it in all cases where such inCommonwealth, 154 Ky. 711; Brennon v. Como tention is not forbidden by some positive rule monwealth, 169 Ky. 815; Wallace v. Common- of law or public policy, and in arriving at that wealth, 167 Ky. 277; Quinlan v. Common intention all parts of the will should be looked wealth, 149 Ky. 476; and Home Insurance Co.

to. v. C. N. 0. & T. P. Ry, Co., 182 Ky. 778."

2. Wills m456–Words are given ordinary [10] Moreover, the former opinion held

meaning unless contrary intention appears. that the execution of the alleged title bond

The words of a will should be given their by the patentee, Smith, to Owens was not ordinary and usual meaning, unless it appears properly established; and, even if the al- from circumstances and conditions, or from leged newly discovered evidence of the wit- the connection with which the language is used, ness Goosling in this case could be accepted, that they were employed, not in their primary it only relates to the transmission of the signification, but in some secondary sense. title from Owens to John Goosling, Sr., one 3. Life estates 12-Life tenant can operate of the remote vendors of plaintiffs, which mine opened or contracted for by former would still leave the question of Owens' ti owner. tle unproven.

A life tenant may work a mine opened be[11, 12] The petition also sets out the fore the commencement of his estate even to names of a number of old people living in the exhaustion, and may also operate a mine where vicinity by whom it is alleged plaintiffs can the former owner, prior to the commencement prove that defendants herein (plaintiffs in of the life estate, had set apart the land for the former action) were neither by them- mining purposes by an enforceable contract, selves nor agents ever in possession of the the contract until after the commencement of

even though no mine had been opened under land in controversy, or made claim to it. It the life estate. does not appear why those aged witnesses living in the community were not discovered 4. Wills en 564(!)-Clause disposing of royalsince 1916, when the original suit was filed;

ties under mining leases made by executors

does not apply to royalties under existing but, if diligence were shown, their testimony

leases by testator. is only cumulative, since that question was

A clause in the will empowering the execufully gone into at the first trial. Independ- tor to execute mineral leases and, if he should ently, however, of those questions, the opin- do so, directing him to pay from the royalties. ion of this court on the former appeal ex- therefrom to testator's daughter such sums as pressly states, “The property has never been may be necessary for her comfortable support, improved by fences or otherwise and neither and to pay the balance to her children on their side has shown title by possession,” and the arriving at the age of 21 years, clearly refers case went off entirely on the question as to only to royalties under leases made by the which set of litigants exhibited the superior executor, and does not defeat the right of a paper title, and it was held that upon that leases executed by testator before his death.

life tenant to royalties on the lands under issue the testimony sustained the title of plaintiff's therein and defendants in this case. 5. Executors and administrators 41-GenIf, therefore, there were no other objections

eral clause as to handling of money by execu. to the testimony of the alleged discovered

tor does not apply to royalties belonging to

life tenant. witnesses, upon the issue of possession, it was irrelevant and immaterial, and for which a

A general clause in a will directing the man

ner in which the executor should handle money new trial will not be ordered.

received by him, with special reference to monSince the requisite diligence to obtain the ey received under mineral leases executed by relief sought does not appear, and since the the executor, does not give the executor a right alleged newly discovered testimony, if true, to royalties under leases executed by testator is not of that character which would author- / which otherwise belonged to the life tenant.

(248 S.W.) Appeal from Circuit Court, Pike County. "Sixth. I hereby empower and authorize my

said executors each or either who may qualify, Action by George Pinson, Jr., as executor to lease any or all of the coal and other minof the will of Alex Varney, deceased, against erals owned by me with the usual mining privPriey A. Varney, Lucy Ellen Goosling, and ileges at its market value at the time of said others, for the construction of a will. From lease, and they are not required to make such a decree construing will as contended by the lease unless they deem it to the best interest of esecutor and by Pricy A. Varney and an said estate. They are also authorized and emother, Lucy Ellen Goosling and others, by powered to collect the royalties arising from their guardian ad litem, appeal, Affirmed. such lease, and account to my estate the funds

arising from such lease, and if such lease is P. B. Stratton, of Pikeville, for appellants. made by said Executors, or either of them, Auxier, Harman, Francis & Hobson and then and in that event I direct that my said

Executors Willis Staton, all of Pikeville, and J. H. Jane Goosling, from time to time such sums

pay to my said daughter, Nancy Greene, of Wiliamson, W. Va., for appellees. of money as they or either of them may deem

necessary for the comfortable support of my THOMAS, J. Alex Varney died testate said daughter, Nancy Jane Goosling, and her and a resident of Pike county in the early children; and that the residue thereof, if any part of the year 1919, He executed his will arising from said lease, shall be held in trust on March 20, 1914, and it was probated after of my said daughter, Nancy Jane Goosling, as

by my said executors, and paid to the children his death on May 15, 1919, and disposed of they arrive at the age of twenty-one years. a considerable estate including a large quan "Seventh. I hereby authorize my said extity of land located in the county of his resi-ecutors to deposit any money coming to their dence. He left surviving him his widow, hands under this will in some bank or trust Pricy A. Varney, a married daughter, Nancy company, at whatever interest they can realize Jane Goosling, and her three children, Lucy on said deposits; and my said executors shall Ellen Goosling, Wade Goosling, and Pricy not be charged with a greater interest than Goosling, all of whom were made legatees utors should be unable to loan said money to

they receive on said money, and if said execand derisees under his will. Appellee and

a bank or trust company for interest, then plaintiff below, George Pinson, Jr., was ap- they are required to deposit said money in pointed by the fifth clause of the will execu- some good solvent bank, and they will not be tor thereof, and he qualified and is now act-charged with interest on same while in bank." ing as such. As such executor he filed this action in the Pike circuit court against all of It is the contention of the executor, and the devisees of the testator seeking a con- which he alleged in the petition, as well as struction of the latter's will with reference that of the widow of the testator and his to the collection and payment of royalties daughter, Nancy Jane Goosling, as alleged arising from coal leases which the testator in their answer, that the widow is entitled executed during his lifetime and perhaps, to the royalties arising from the three leases after the execution of his will, but before his executed by the testator in his lifetime and death, upon two of which leases mines were all of which she is entitled to collect and opened and operated before the testator's appropriate to her own without indeath, and from the third one he collected the terference on the part of the executor; minimum royalties before his death, and it while the guardian ad litem appointed for was kept alive and was enforceable by the the children of Mrs. Goosling insists that a lessee at the time of his death. By the sec- proper interpretation of the will, as containond cause of his will he gave to his widow, ed in its two quoted clauses, vests the benePricy A. Varney, all of his personal property, ficial interest in the royalties, arising from "including money, live stock, notes, accounts the three leases mentioned and executed by and choses in action,” and in the same clause testator before his death, in Mrs. Goosling he devised to his widow all of his real estate and her children, which should be collected situated in the county "during her natural and disposed of in the manner therein prolife

, and if she should survive me and after vided, and that the widow took no interest her death to descend as provided in clause 3 whatever in them. hereof." By clause 3 be provided that after The court below sustained the contention the death of his wife, if she should survive of the executor, the widow, and the daugh. him, his daughter, Nancy Jane Goosling, ter, and construed the will as giving to the siould take his real estate "for and during widow, Pricy A. Varney, the royalties from her natural life” and at her death to her the leases executed by the testator with children, if any. By the fourth clause of his power to collect them during her life, but will be made provision for the disposition of after her death they passed to the daughter his property in case he should survive his for her life and at her death. to her chilwife , and in the fifth clause he named an ex- dren, and that the executor had the right to

execute leases and collect the royalties there. The chief controversy arises over the cor- from and dispose of them as directed in the rect interpretation of clauses 6 and 7 of sixth clause of the will and to handle and the will, which are in these words:

manage the proceeds arising therefrom as di

use

ecutor of his will,

her 142 The remaining question, therefore, is

rected in its seventh clause, and entered a secuting an enforceable lease for that purpose judgment accordingly, from which the guard prior to the commencement of the life estate, ian ad litem for and on behalf of the infants although no mines had been opened thereunder prosecutes this appeal.

until after the commencement of the life es[1, 2] It is admitted by all parties that the

tate." contention of the guardian ad litem is the correct one as to all leases heretofore and In other words, that where the owner bewhich may hereafter be executed by the ex- fore the commencement of the life estate had ecutor of the will under the authority con- set apart his land for mining purposes and ferred upon him by its sixth clause; so that had impressed upon it such uses by an enthe only question in the case is: Who is en forceable contract, the same results would titled to the royalties issuing out of the three follow and attach to his successors in title leases which the testator executed in his life as if the mine had been opened and actime, during the life of the widow? The fun- tually in operation before his death, and, of damental, elementary, and universally ap course, before the commencement of the life plied rule is to ascertain the intention of the estate, unless he made different provisions testator and apply it in the construction of by his will. The same doctrine is in effect his will in all cases where such intention is held in the case of Crain v. West, 191 Ky. 1, not forbidden by some positive rule of law 229 S. W. 51. Many cases are cited in those or of public policy. In arriving at that in- two opinions which are not necessary to retention, all parts of the will should be looked peat here, since they thoroughly establish the to and the words it contains be given their doctrine of each of them, and under it the ordinary and usual meaning, unless should widow Pricy A. Varney is entitled to the appear from the circumstances and condi- royalties from the leases executed by her detions, or connection with which the language ceased husband in his lifetime, unless he is used, that the words were employed not in made contrary provisions in his will. their primary signification but in some other secondary sense, in which case the latter to determine whether such contrary proviinterpretation should be applied. We have sions were made. It will be observed that so often repeated the rule as just stated that the sixth clause of the will empowers and auwe deem it unnecessary to insert supporting thorizes the executor to execute mineral cases.

leases after the testator's death, if he deemFollowing that rule we experience but ed it “to the best interest of said estate," little, if any, difficulty in arriving at the in- and if such leases were made the executor tention of the testator in this case. The was therein "authorized and empowered to second clause of his will in plain and unam- collect the royalties arising from such lease" biguous terms makes the widow the sole (or leases). It is further provided in the legatee of all of his personal property, and same clause that in the event any such lease the devisee of all of his real estate situated or leases should be made by the executor in Pike county for and during her natural then he should collect the royalties and pay life. She therefore became a life tenant to the daughter, Nancy Jane Goosling, such of all the real estate covered by the will and sums as might be necessary for the comfortnecessarily took and is entitled to all the able support of herself and children, and the emoluments belonging to a life tenant of real residue "if any arising from said lease" (or estate, unless a different purpose of the tes- leases) shall be held in trust by the executor tator should appear from some other parts of and paid to the children of the daughter as his will. But it is the contention of the they arrive at the age of 21 years. The inguardian ad litem that such a contrary pur- tention expressed in that clause is possibly pose does appear in clause 7 of the will, as plain as language could make it. It exwhich we will subsequently discuss and dis-pressly refers to no other leases than those pose of.

which the executor is authorized to make [3] In the case of Daniels v. Charles, 172 after he qualifies, and, of course, by no sort Ky. 238, 189 S. W. 192, and numerous others of reasoning can it be made to apply to any therein referred to, both foreign and domes- leases which the testator executed in his lifetic, it is held that “the rule is that a tenant time. The same clause also designates with .for life, unless precluded by restraining positive certainty the only royalties which words, may work a mine that was opened the executor has the right to collect; and bebefore the creation of the life estate," and cause the testator conferred that right upon that, “when not expressly precluded, a life him as to the leases which he might make tenant may work a mine opened before the after the testator's death furnishes commencement of his estate, even to exhaus- grounds for the contention that the right to tion.” It is furthermore held therein, and collect and apportion the royalties from the which is supported by the adjudicated cases, leases executed by the testator was also conthat

ferred upon him. "Mining by the life tenant will be allowed

[5] Clause 7 of the will contains only a diif the former owner of the fee has impressed rection to the executor as to how he should

no

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(248 S.W.)
under the will to collect until he would be Action by J. C. Kirchdorfer against Boyce
required under the terms of the will to dis- Watkins and others. Judgment for the plain-
tribute it. It is broad enough in its terms tiff for only the amount admitted to be due
to include all of the money which the execu- by defendants, and plaintiff appeals. Af-
tor might collect in winding up the estate, firmed.
and until he paid it to the ones entitled to it

Henry J. Tilford, of Louisville, for appel-
under the terms of the will, but it particular- lant.
ly refers to the royalties which the executor

Miller & Chevalier, Stuart Cheralier, and
was entitled to collect from the leases which Joseph D. Peeler, all of Louisville, for ap-
he might execute under the provisions of the pellees.
sixth clause of the will, and, as before stat-
ed, it bad no reference to the royalties which

THOMAS, J. Appellant and plaintiff be-
prior clauses of the will devised to the widow low, J. C. Kirchdorfer, filed this action in the
for her natural life.

Jefferson circuit court against appellee and
Since the judgment conforms to the views defendant below, Boyce Watkins, individual-
herein expressed, it is affirmed.

ly and as administrator of his mother, Alice
Watkins, seeking the recovery of a judgment
on a note which defendant and his mother
executed to him on July 12, 1916, agreeing

and promising to pay him six months there.
KIRCHDORFER v. WATKINS et al.

after the sum of $3,600. The note, omitting Court of Appeals of Kentucky. March 2,

date and signature, says: 1923.)

"Six months after date we promise to pay to

the order of J. C. Kirchdorfer, thirty-six hun1. Evidence Erw385-Writing cannot be contradicted or varied by parol.

dred and no/100 dollars. Without defalcation,

value received negotiable and payable at AmeriIf the writing is complete on its face, and can Southern National Bank Louisville, Ky., contains nothing indicating that it is only a with 5 per cent, interest from date until paid. part of larger, or other, transactions, forming This note is to be credited by 13 of the proceeds the complete one, and there has been an abso- of the Iroquois Life Insurance Company stock lute delivery, and no claim of fraud or mistake, deposited as collateral security on the $11,parol evidence is not admissible to contradict 800.00 of J. C. Kirchdorfer to the American or vary its terms.

Southern National Bank.” 2. Evidence fm443(1)-Parol evidence is ad. missible to explain reference in instrument to

The answer alleged as a pro tanto defense collateral transaction.

that the note was executed in renewal of anWhere a note contained a reference to another one for the same amount, and executed other collateral transaction of which it was a by the same parties on January 12, 1916, possible part, parol evidence is admissible to and that it, together with the renewal, was explain the reference, and to show what con- intended by the parties to evidence and senection the collateral transaction has with the cure with the name of Alice Watkins the exnote, and if such evidence is sufficient to conpect them as forming a completed transaction, tent of the liability of defendant, Boyce Watthe rights of the parties will be adjusted ac kins, on a note of the same date executed cording to that transaction.

by plaintiff as principal to the American 3. Evidence 423(6)–Parol proof is com

Southern National Bank for the sum of $10,petent to show absolute note was executed as 800, which was also renewed upon the same collateral security.

day as the one sued on, but which in the It is competent to show by parol proof that meantime had been increased $1,000, and that & note, absolute on its face, was in fact ex- defendant, Boyce Watkins, was surety on ecuted as collateral security for another ex, that note and there was placed therewith as isting debt.

collateral security 2,1845/12 shares of the 4. Evidence m-443(1)_Statement in note pro- capital stock of the Iroquois Life Insurance ceeds of sale of stock were to be credited ren- Company and also the note executed by deders parol proof of collateral contract admis- fendant and his mother. That note we shall

refer to as the “large” note, and the copy of A statement in a note that it was to be it filed with the record shows in its face the credited with one-third of the proceeds of the deposit of the named collateral. It was then sale of corporate stock is a sufficient reference alleged that plaintiff and defendant had to another transaction to render competent jointly purchased from a brokerage firm in parol proof that the note was given as part Louisville the shares of stock of the Iroquois of a transaction involving the purchase of the stock, and that the maker was liable thereon Life Insurance Company and had paid there. only for the balance due from him on the other for in real estate which they respectively con

yeyed, but the property of each of them was

incumbered and to procure the funds with Appeal from Circuit Court, Jefferson Coun- which to discharge that incumbrance the ty, Common Pleas Branch, First Division. large note was executed; that the propor

Em for other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

1

sible,

transaction.

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tions of the respective interests of the par- of evidence. It is sufficient only to say here ties in and to the purchased stock was in that, if the writing is complete on its face the ratio of one-third to Watkins and two- and contains nothing therein indicating and thirds to plaintiff, and that they valued their pointing to the fact that it is only a part of property so conveyed in the same ratio; that a larger or other transactions forming the 1,100 of the shares deposited as collateral to entire and complete one, and there has been the large note it was agreed between plaintiff an absolute delivery and no claim of fraud or and defendant and other indorsers of the mistake, the rule as originally promulgated large note who were directors of the insur- is still followed and adhered to as is shown ance company should be sold, the value of in the late case, and the only one relied on which at that time was $20 per share, and the by plaintiff, of Tross v. Bills' Executrix, 189 proceeds used in liquidating the large note Ky. 115, 224 S. W. 600. In that case the and the balance to be divided among the note was absolute on its face, and there was parties on terms not necessary to state in nothing contained in it referring to another this opinion, and that the remainder of the collateral transaction of which the note sued stock should be shared one-third to defendant on was a possible integration, as defined by and two-thirds to plaintiff. It was alleged Mr. Wigmore in his work on Evidence, vol. that in the settlement of the large note the 4, § 2430, that called for explanation in bank remitted all of it except $8,000, and that order to put before the court the entire trans$3,200 of that sum was paid by other indors-action and obligation of the parties. One of ers of the large note, and plaintiff paid there the well-founded exceptions to the rule unon in full settlement of all his liability and der consideration is that under the circumin extinguishment of that note the sum of stances just outlined parol evidence is admis$4,800, one-third of which, or $1,600, was ad- sible to explain the reference in the writing mitted to be due.

to the collateral transaction referred to, and A demurrer was overruled to that plea, to show what connection it has with the writfollowed by a denial in the reply, and upon ing under consideration, and if the evidence trial before a jury, under instructions of is sufficient to connect the former with the which there is no complaint, admitting the latter as forming a completed transaction, availability of the defense, there was a ver- the rights of the parties will be adjusted acdiet in favor of plaintiff for only the amount cording to the contract and understanding so admitted ($1,600), and his motion for a new completed. Hence, it is said in 22 Corpus trial was overruled, and he prosecutes this Juris, 1156, 1157, thatappeal. Some complaint is made about the

"It has been asserted that parol evidence is admission of evidence and other errors which we deem immaterial. The chief and what in themselves distinct and complete and do not

not admissible to connect writings which are we consider the only material ground requir- on their face show any connection; but this ing our consideration is the availability of rule is not of uniform operation, as there are the defense relied on.

cases in which such evidence has been consid[1, 2] It will at once be seen that the ques-ered admissible; and certainly such evidence tion raised is whether it was competent to must be admissible where there is something on prove, under the circumstances and facts pre- the face of one of the instruments to indicate sented by the record, the oral agreement re- that it does not in itself evidence a coinplete lied on, the determination of which calls for transaction, or where it refers to some other

writing or undertaking." (Our italics). a consideration of the rule against varying the terms of a written contract by parol [3] Many cases are cited in the note supproof of a prior or contemporaneous agree porting the text, among which is Dillingham ment. Much has been written upon the sub- v. Estill, 3 Dana (Ky.) 21, wherein it was ject and many exceptions have been grafted held that a writing, purporting to release upon the rule against the admissibility of the seller “from any responsibility of said such testimony since it was first promulgated. negroes,” could be shown by parol as apply. Of course the purpose and intention of the ing to a warranty contained in a simultanerule was to preserve the integrity of an ap- ously executed bill of sale of two slaves; the parently complete writing and to close the words in the alleged release "said negroes" door for the opportunity of frauds and per- being sufficient, according to the opinion of juries in an effort to impeach the writing by the court, to prove by parol the connection a contemporaneous or prior oral agreement. of that writing with the bill of sale whereby The beginning of the relaxation of the rule, the slaves were sold. Furthermore, it is comas contained in the exceptions thereto, was petent to show by parol proof that a note, first applied to instruments not required to though absolute on its face, was in fact ex be under seal, and for a long while the orig- ecuted as collateral security for another es. inal exceptions were not made applicable to isting debt. Corpus Juris, supra, 1165. sealed instruments. It is not our purpose [4] The reference in the face of the note to enter into a history of the law relating to sued on to the stock of the Iroquois Life Inthe entire subject, since that can be readily surance Company deposited as collateral with

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