17 Ky.L.Rptr. 1207, 98 Ky. 643
Court of Appeals of Kentucky.
Feb. 6, 1896.
ACTION: Reversed.

Appeal from circuit court, Clay county.

"To be officially reported."

Action by David Chadwell's administrator for settlement of his decedent's estate.
From a judgment for Alexander Chadwell, Jr., on his claim against the estate, the administrator appeals.

This appeal is prosecuted by the appellant, David Chadwell, Jr., administrator of David Chadwell, Sr., from a judgment of the Clay circuit court rendered against him in favor of the appellee, Alexander Chadwell, Jr. It appears from this record that appellant had brought suit for the settlement of the estate of his father, David Chadwell, Sr., and that appellee had filed with the commissioner, to whom the suit had been referred to audit and report debts, etc., a paper purporting to be a note executed to Alexander Chadwell, Sr., by the decedent for $400, dated 12th May, 1888, due one day thereafter, which note he (appellee) claimed had been assigned to him. The commissioner, in his report, rejected the claim, and appellee excepted to that part of the report of the commissioner which rejected the claim. The court expressed the opinion that the proof was not sufficient to authorize the allowance of the said claim, but, inasmuch as appellee insisted that his claim was just, and desired an issue out of chancery, the court ordered a jury trial. The issue so submitted by the court is as follows: "And that the issue as to whether the note purporting to have been executed by the deceased, Chadwell, to Alex. Chadwell, is the act and deed of the said deceased, Chadwell, which issue will be docketed for trial the 10th day of the next term." A trial resulted in a verdict and judgment for the amount claimed by appellee, and, appellant's motion for a new trial having been overruled, he prosecutes this appeal.

The sole ground relied on in the motion for new trial is that the verdict is contrary to the evidence and contrary to law. The motion of appellee to dismiss the appeal, because appellant had failed to file statement required by the Code and rules of practice, must be overruled, as such statement now appears of record, and we must presume that the superior court allowed the same to be made, if, indeed, it had been omitted prior to the filing of the motion. The bill of exceptions now appears to be properly signed, and we presume the amendment, if any was made, was allowed by order of the superior court to which this appeal was taken.

It is insisted by counsel for appellee that no plea of non est factum was filed by appellant; hence, the judgment should be affirmed, without regard to the testimony. This contention is based, in part, if not wholly, upon the assumption that the paper in question is, prima facie, the note of the decedent. The note in question is shown, by affidavit of the original payee and of the present claimant, to have been signed only by mark, and to have had no attesting witness until after the death of decedent, and then only attested by the original payee, who was then not a competent witness as to the transaction between him and decedent, and therefore his attestation was a nullity, if, indeed, the attestation of the payee in a note, under any circumstances, is not a nullity. In the case of Vanover v. Murphey's Adm'r, 15 S. W. 61, this court held that the mere presentation of a note with a mark only is not evidence of its validity. If the appellee had, by petition, or by counterclaim or set-off, brought suit upon the note, alleging the execution and delivery, it would have been necessary for appellant to have responded; but nothing of that kind was done. But, in addition to this, it is worthy of notice that the issue was submitted to a jury at appellee's request, and the court clearly defined the issue to be tried; hence, no other pleadings were necessary. There was no proof tending to show that decedent did in fact sign the note, or authorize any one to sign it for him. There was some proof conducing to show that decedent at one time owed the payee of the note some amount of money, according to his own statements, and also some proof conducing to show that he claimed that the payee owed him, and that he (decedent) wished that appellee would sue so that a settlement could be had. It is also in proof that the decedent could write his own name, and no reason is given why he should only make his mark to any note.

The affidavits of Alexander Chadwell, Sr., and Alexander Chadwell, Jr., were not evidence before the jury for any purpose, but it does not appear that the affidavits were introduced or read as evidence. The affidavit of the claimant does not substantially conform to the requirements of section 3870 of the Kentucky Statutes, and is therefore fatally defective. Section 3872 of the Kentucky Statutes forbids the bringing of an action and prohibits any recovery upon a claim without the proper affidavit. Section 3874 provides that no demand against a decedent's estate shall be paid by his personal representative, or allowed as a credit by any commissioner or court which is not verified by affidavit as required; but, upon return of this cause, the affidavit may be amended. It seems to us that the verdict of the jury is not sustained by the evidence, and is contrary to law.

It results, therefore, that the court below erred in overruling appellant's motion for a new trial, and that judgment is therefore reversed, and cause remanded, with directions to set aside the verdict and judgment, and for a new trial upon principles consistent with this opinion.

Ky.App. 1896.
33 S.W. 1118, 17 Ky.L.Rptr. 1207, 98 Ky. 643


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