Opinion
March 26, 1954.
Appeal from the Circuit Court, Bell County, William Dixon, J.
Robert J. Watson, R. L. Maddox, Middlesboro, for appellants.
Hubert White, Middlesboro, Grant F. Knuckles, W. R. Lay, Pineville, for appellees.
In this action appellants contested the will of J. W. Archer on the sole ground the paper was not duly executed. The jury found for the will and this appeal followed.
The record shows the signature of testator was witnessed by Mrs. Elizabeth Capps and Roy Hammonds. On the trial Mrs. Capps testified that she did not sign the paper as a witness to testator's signature. When confronted with the will and asked if that was her signature, she replied, "I don't know whether it is or not."
The other witness to the will, Roy Hammonds, positively testified Mrs. Capps signed the instrument in his presence and in the presence of testator. Mrs. Martha Hammonds, who drew the will, testified to the same effect.
The case was submitted to the jury under proper instructions and no complaint is made of them in this court. Indeed, appellants' attorney in brief with commendable frankness says he can advance no argument why the judgment should be reversed.
There is a contrariety in the testimony inasmuch as Mrs. Capps testified she did not sign the paper as a witness to testator's signature. But the great preponderance of the evidence shows she did and there is no reason for this court to disturb the verdict.
The judgment is affirmed.