GOOSLING et al. v. PINSON et al.

(Court of Appeals of Kentucky. March 2, 1923.)

"But, independently of those reasons, the [ize 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 due diligence renders such evidence unavailable.' And on page 1193 it is said: 'Denials of motions for new trials on the ground of newly discovered evidence are generally based upon lack of diligence to procure and produce evidence known to defendant prior to the trial; or upon neglect to ascertain what testimony witnesses would have given.' Cases from this court sustaining the rule of practice are: Ty ree v. Commonwealth, 160 Ky. 706; Clair V. Commonwealth, 154 Ky. 711; Brennon v. Commonwealth, 169 Ky. 815; Wallace v. Commonwealth, 167 Ky. 277; Quinlan v. Commonwealth, 149 Ky. 476; and Home Insurance Co. v. C. N. O. & T. P. Ry. Co., 182 Ky. 778."

[10] Moreover, the former opinion held that the execution of the alleged title bond by the patentee, Smith, to Owens was not properly established; and, even if the alleged newly discovered evidence of the witness Goosling in this case could be accepted, it only relates to the transmission of the title from Owens to John Goosling, Sr., one of the remote vendors of plaintiffs, which would still leave the question of Owens' title unproven.

1. Wills 439, 470-Intention of testator controls as ascertained from entire instrument.

The fundamental rule for the construction of a will is to ascertain the intention of testator, and apply it in all cases where such intention is not forbidden by some positive rule of law or public policy, and in arriving at that intention all parts of the will should be looked

to.

2. Wills 456-Words are given ordinary meaning unless contrary intention appears.

The words of a will should be given their ordinary and usual meaning, unless it appears from circumstances and conditions, or from the connection with which the language is used, that they were employed, not in their primary signification, but in some secondary sense. 3. Life estates 12-Life tenant can operate mine opened or contracted for by former . owner.

A life tenant may work a mine opened before the commencement of his estate even to exhaustion, and may also operate a mine where the former owner, prior to the commencement of the life estate, had set apart the land for mining purposes by an enforceable contract, the contract until after the commencement of even though no mine had been opened under the life estate.

4. Wills 564(1)-Clause disposing of royalties under mining leases made by executors does not apply to royalties under existing leases by testator.

[11, 12] The petition also sets out the names of a number of old people living in the vicinity by whom it is alleged plaintiffs can prove that defendants herein (plaintiffs in the former action) were neither by themselves nor agents ever in possession of the land in controversy, or made claim to it. It does not appear why those aged witnesses living in the community were not discovered since 1916, when the original suit was filed; but, if diligence were shown, their testimony 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 life tenant to royalties on the lands under leases executed by testator before his death. 5. Executors and administrators eral clause as to handling of money by executor does not apply to royalties belonging to life tenant.

issue the testimony sustained the title of plaintiff's therein and defendants in this case. If, therefore, there were no other objections to the testimony of the alleged discovered witnesses, upon the issue of possession, it was irrelevant and immaterial, and for which a new trial will not be ordered.

41-Gen

A general clause in a will directing the manner in which the executor should handle money 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.

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

(248 S.W.)

Appeal from Circuit Court, Pike County. Action by George Pinson, Jr., as executor of the will of Alex Varney, deceased, against Pricy A. Varney, Lucy Ellen Goosling, and others, for the construction of a will. From a decree construing will as contended by the executor and by Pricy A. Varney and another, Lucy Ellen Goosling and others, by their guardian ad litem, appeal. Affirmed. P. B. Stratton, of Pikeville, for appellants. Auxier, Harman, Francis & Hobson and Willis Staton, all of Pikeville, and J. H. Greene, of Wiliamson, W. Va., for appellees.

on said deposits; and my said executors shall not be charged with a greater interest than they receive on said money, and if said executors should be unable to loan said money to a bank or trust company for interest, then they are required to deposit said money in some good solvent bank, and they will not be charged with interest on same while in bank."

"Sixth. I hereby empower and authorize my said executors each or either who may qualify, to lease any or all of the coal and other minerals owned by me with the usual mining privileges at its market value at the time of said lease, and they are not required to make such lease unless they deem it to the best interest of said estate. They are also authorized and empowered to collect the royalties arising from such lease, and account to my estate the funds arising from such lease, and if such lease is made by said Executors, or either of them, then and in that event I direct that my said Jane Goosling, from time to time such sums Executors pay to my said daughter, Nancy 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 by my said executors, and paid to the children on March 20, 1914, and it was probated after of my said daughter, Nancy Jane Goosling, as 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 Ellen Goosling, Wade Goosling, and Pricy Goosling, all of whom were made legatees and devisees under his will. Appellee and plaintiff below, George Pinson, Jr., was appointed by the fifth clause of the will executor thereof, and he qualified and is now acting as such. As such executor he filed this action in the Pike circuit court against all of the devisees of the testator seeking a construction of the latter's will with reference to the collection and payment of royalties arising from coal leases which the testator executed during his lifetime and, perhaps. after the execution of his will, but before his death, upon two of which leases mines were opened and operated before the testator's death, and from the third one he collected the minimum royalties before his death, and it was kept alive and was enforceable by the lessee at the time of his death. By the second clause of his will he gave to his widow, Pricy A. Varney, all of his personal property, "including money, live stock, notes, accounts and choses in action," and in the same clause he devised to his widow all of his real estate situated in the county "during her natural life, and if she should survive me and after her death to descend as provided in clause 3 hereof." By clause 3 he provided that after the death of his wife, if she should survive him, his daughter, Nancy Jane Goosling, should take his real estate "for and during her natural life" and at her death to her children, if any. By the fourth clause of his will he made provision for the disposition of his property in case he should survive his wife, and in the fifth clause he named an executor of his will.

The chief controversy arises over the correct interpretation of clauses 6 and 7 of the will, which are in these words:

It is the contention of the executor, and which he alleged in the petition, as well as that of the widow of the testator and his daughter, Nancy Jane Goosling, as alleged in their answer, that the widow is entitled to the royalties arising from the three leases executed by the testator in his lifetime and all of which she is entitled to collect and appropriate to her own use without interference on the part of the executor; while the guardian ad litem appointed for the children of Mrs. Goosling insists that a proper interpretation of the will, as contained in its two quoted clauses, vests the beneficial interest in the royalties, arising from the three leases mentioned and executed by testator before his death, in Mrs. Goosling and her children, which should be collected and disposed of in the manner therein provided, and that the widow took no interest whatever in them.

The court below sustained the contention of the executor, the widow, and the daughter, and construed the will as giving to the widow, Pricy A. Varney, the royalties from the leases executed by the testator with power to collect them during her life, but after her death they passed to the daughter for her life and at her death. to her children, and that the executor had the right to execute leases and collect the royalties therefrom and dispose of them as directed in the sixth clause of the will and to handle and manage the proceeds arising therefrom as di

[3] In the case of Daniels v. Charles, 172 Ky. 238, 189 S. W. 192, and numerous others therein referred to, both foreign and domestic, it is held that "the rule is that a tenant for life, unless precluded by restraining words, may work a mine that was opened before the creation of the life estate," and that, "when not expressly precluded, a life tenant may work a mine opened before the commencement of his estate, even to exhaus-grounds for the contention that the right to tion." It is furthermore held therein, and which is supported by the adjudicated cases, that

(248 S.W.)

under the will to collect until he would be required under the terms of the will to distribute it. It is broad enough in its terms to include all of the money which the executor might collect in winding up the estate, and until he paid it to the ones entitled to it under the terms of the will, but it particularly refers to the royalties which the executor was entitled to collect from the leases which he might execute under the provisions of the sixth clause of the will, and, as before stated, it had no reference to the royalties which prior clauses of the will devised to the widow

for her natural life.

Action by J. C. Kirchdorfer against Boyce Watkins and others. Judgment for the plaintiff for only the amount admitted to be due by defendants, and plaintiff appeals. Affirmed.

Henry J. Tilford, of Louisville, for appellant.

Miller & Chevalier, Stuart Chevalier, and Joseph D. Peeler, all of Louisville, for appellees.

THOMAS, J. Appellant and plaintiff below, J. C. Kirchdorfer, filed this action in the Jefferson circuit court against appellee and defendant below, Boyce Watkins, individually 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 thereafter the sum of $3,600. The note, omitting date and signature, says:

"Six months after date we promise to pay to dred and no/100 dollars. Without defalcation, the order of J. C. Kirchdorfer, thirty-six hunvalue received negotiable and payable at American Southern National Bank Louisville, Ky., with 5 per cent. interest from date until paid. This note is to be credited by 3 of the proceeds of the Iroquois Life Insurance Company stock deposited as collateral security on the $11,800.00 of J. C. Kirchdorfer to the American Southern National Bank."

The answer alleged as a pro tanto defense that the note was executed in renewal of another one for the same amount, and executed by the same parties on January 12, 1916, and that it, together with the renewal, was intended by the parties to evidence and secure with the name of Alice Watkins the extent of the liability of defendant, Boyce Wat

Where a note contained a reference to another collateral transaction of which it was a possible part, parol evidence is admissible to explain the reference, and to show what connection the collateral transaction has with the note, and if such evidence is sufficient to connect them as forming a completed transaction, the rights of the parties will be adjusted ac-kins, on a note of the same date executed cording to that transaction.

3. Evidence 423(6)-Parol proof is competent to show absolute note was executed as collateral security.

It is competent to show by parol proof that a note, absolute on its face, was in fact executed as collateral security for another ex, isting debt.

4. Evidence 443 (1)-Statement in note proceeds of sale of stock were to be credited renders parol proof of collateral contract admissible.

A statement in a note that it was to be credited with one-third of the proceeds of the sale of corporate stock is a sufficient reference to another transaction to render competent parol proof that the note was given as part of a transaction involving the purchase of the stock, and that the maker was liable thereon only for the balance due from him on the other

transaction.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, First Division.

by plaintiff as principal to the American Southern National Bank for the sum of $10,

800, which was also renewed upon the same day as the one sued on, but which in the meantime had been increased $1,000, and that defendant, Boyce Watkins, was surety on that note and there was placed therewith as collateral security 2,1845/12 shares of the capital stock of the Iroquois Life Insurance Company and also the note executed by defendant and his mother. That note we shall refer to as the "large" note, and the copy of it filed with the record shows in its face the deposit of the named collateral. It was then alleged that plaintiff and defendant had jointly purchased from a brokerage firm in Louisville the shares of stock of the Iroquois Life Insurance Company and had paid therefor in real estate which they respectively conveyed, but the property of each of them was incumbered and to procure the funds with which to discharge that incumbrance the large note was executed; that the propor

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

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. 660. 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

ing under consideration, and if the evidence is sufficient to connect the former with the latter as forming a completed transaction, the rights of the parties will be adjusted according to the contract and understanding so completed. Hence, it is said in 22 Corpus Juris, 1156, 1157, that

A demurrer was overruled to that plea, to show what connection it has with the writfollowed by a denial in the reply, and upon trial before a jury, under instructions of which there is no complaint, admitting the availability of the defense, there was a verdict in favor of plaintiff for only the amount admitted ($1,600), and his motion for a new trial was overruled, and he prosecutes this appeal. Some complaint is made about the admission of evidence and other errors which

we deem immaterial. The chief and what we consider the only material ground requiring our consideration is the availability of the defense relied on.

"It has been asserted that parol evidence is in themselves distinct and complete and do not not admissible to connect writings which are on their face show any connection; but this rule is not of uniform operation, as there are cases in which such evidence has been considered admissible; and certainly such evidence must be admissible where there is something on the face of one of the instruments to indicate transaction, or where it refers to some other that it does not in itself evidence a complete writing or undertaking." (Our italics).

[1, 2] It will at once be seen that the question raised is whether it was competent to prove, under the circumstances and facts presented by the record, the oral agreement relied on, the determination of which calls for 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 applyOf 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 exbe under seal, and for a long while the orig-ecuted as collateral security for another exinal exceptions were not made applicable to isting debt. Corpus Juris, supra, 1165. sealed instruments. It is not our purpose to enter into a history of the law relating to the entire subject, since that can be readily found in any standard text-book on the law

[4] The reference in the face of the note sued on to the stock of the Iroquois Life Insurance Company deposited as collateral with the large note clearly indicated that defend