-sufficiency of quantity of liquor.

quantity. It was not so utterly deficient in that respect as to be negligible, and it was for the jury to say whether it was sufficient to be available for unlawful use.

The instruction complained of is the following: "I instruct you that when the husband and wife are living together as such, the possession of one spouse is the possession of the other where it affirmatively appears beyond a reasonable doubt from the evidence that said possession of one spouse was with the knowledge of the other, and such possession was had on premises occupied by both husband and wife."

As applied to the facts shown in the record, we find the instruction without error. The husband is the head of the family, and as such has the general right to regulate the household, and to exercise the general control of the family management. He has the right to prevent his wife from using their common residence for an illegal business or purpose. If he knowingly permits her to use it for the Husband and illegal purpose of man for keeping keeping intoxicating liquors therein he becomes a par

wife-liability of

of liquor by his wife.

ticipator in the act, and is liable to

the penalties the law inflicts for unlawful possession. The rule rests not on a presumption of coercion of the wife by the husband, but on the principle that the husband has the right to control his household, and is responsible for the illegal acts which he knowingly permits to take place therein.

The rule is stated in 21 Cyc. 1354, in the following language: "The husband is liable for his wife's criminal acts committed by his bidding, or in his presence and under his coercion. Likewise where she, in his presence and with his knowledge, commits an act not malum in se, he may be found guilty, as where, with the husband's knowledge or consent, the wife sells intoxicating liquors contrary to statute. If such sales are made by her in his house, even in his absence, and even contrary to his wishes, he may be held guilty, since it is his duty to control or prevent the same.'

See also Com. v. Barry, 115 Mass. 146; State v. Rozum, 8 N. D. 548, 80 N. W. 477; People v. Sybisloo, 216 Mich. 1, 19 A.L.R. 133, 184 N. W. 410.

The judgment is affirmed.

Bridges, Mitchell, and Tolman, JJ.,

concur.

of keeping intoxicating liquor therein becomes a participator in the act, and is liable for the penalties the law inflicts for unlawful possession. The court points out that the rule rests, not on a presumption of coercion of the wife by the husband, but on the principle that the husband has the right to control his household, and is responsible for the illegal acts which he knowingly permits to take place therein. A. S. M.

weight

Evidence to handwriting.

expert witness

Messrs. W. A. Byrne, W. P. Kimball, James H. Hazelrigg, E. C. O'Rear, O. S. Hogan, W. G. Dearing, and Wilfred Jessup also for appellant.

same.

McNamara v. Coughlin, 159 Ky. 810, 169 S. W. 555; Commonwealth Ins. Co. v. Dixon, 31 Ky. L. Rep. 949, 104 S. W. 355; Louisville & N. R. Co. v. Helm, 121 Ky. 661, 89 S. W. 709; Eagle Distillery v. Hardy, Ky., 120 S. W. 337; Sacrey v. Louisville R. Co. 152 Ky. 478, 153 S. W. 753; Standard Oil Co. v. Eiler, 110 Ky. 214, 61 S. W. 8, 9 Am. Neg. Rep. 482; Southern R. Co. v. Adkins, 133 Ky. 264, 117 S. W. 321, 119 S. W. 820; Louisville College v. Hartford Steam Boiler Inspection & Ins. Co. 185 Ky. 778, 215 S. W. 941.

Messrs. Pendleton & Bush, Hunt & Bush, and Allen & Duncan for appellee.

Thomas, J., delivered the opinion of the court:

This appeal involves the question whether a paper dated May 14, 1910, is the last will and testament of J. W. Strode, deceased. It was probated as such by the county court of Fayette county at the instance of his widow, Irene B. Strode, the appellant and contestee below, who is the only devisee and legatee therein, and who, by its terms, is made ex

ecutrix thereof. An appeal from that judgment was prosecuted to the Fayette circuit court by the appellee and contestant below, W. D. Strode, the father and only heir of decedent, his mother being dead, and he and appellant not having any children, though they were married in 1900 and lived together till the decedent's death, which occurred at his home in Fayette county on September 10, 1915.

The paper in question is holographic, and it gave to appellant the residence and 250 acres of land around it, half of decedent's property in Lexington, and all of his personal property. The only ground of contest is that it was not written or signed by J. W. Strode, which inferentially says it is a forgery. It It is admitted that if it is genuine the testator possessed sufficient mental capacity to make it, and that he was not unduly influenced to do so. At a trial had in the Fayette circuit court there was a verdict on March 9, 1916, finding it to be the last will and testament of J. W. Strode. Judgment was pronounced on that verdict, but a motion for a new trial filed in due time by appellee was sustained, and the verdict and judgment were set aside, to which ruling appellee objected and excepted and obtained leave to file bills of exception and preserve the evidence heard upon that trial, which we shall hereafter refer to as "the first trial." The court, in granting the new trial, assigned no reasons therefor: the order only reciting that "said motion is sustained and the verdict of the jury and the judgment entered thereon are hereby set aside."

A second trial resulted in a verdict returned on December 5, 1919, finding the paper in contest not to be the last will and testament of the decedent, upon which judgment was accordingly rendered, and on the next day appellant individually and as executrix entered motion to set aside the last verdict and to set aside the order granting a new trial at the first hearing and render judgment upon the verdict returned at the first

trial, which motion was overruled with exceptions, whereupon she filed her motion for a new trial, including therein as one of the grounds the refusal of the court to sustain her motion for a judgment upon the first verdict. That motion was overruled, and she has appealed, her counsel relying exclusively for a reversal upon the error of the court in setting aside the verdict returned at the first trial; it being conceded that there is such a conflict in the testimony heard upon the last trial as to sustain a verdict either way, and that no other material errors occurred at that trial.

in

The question is therefore narrowed to the single proposition whether there was such an abuse of discretion by the trial court granting the new trial upon the first hearing as will authorize us to reverse the judgment therefor, and to direct the entry of one upon that verdict. That such a practice is allowable and frequently exercised in a proper case is admitted, and this court is no exception to those recognizing and adopting it, as will be seen from the cases of Chesapeake & O. R. Co. v. Salyers, 187 Ky. 144, 218 S. W. 474; Louisville College v. Hartford Steam Boiler Inspection & Ins. Co. 185 Ky. 778, 215 S. W. 941; Gullett v. Chesapeake & O. R. Co. 182 Ky. 409, 206 S. W. 641; Dailey v. Lexington & E. R. Co. 180 Ky. 668, 203 S. W. 569; Ross v. Kohler, 163 Ky. 583, L.R.A.1915D, 621, 174 S. W. 36; Perkins v. Ogilvie, 148 Ky. 309, 146 S. W. 735; Nolan v. Standard Sanitary Mfg. Co. 33 Ky. L. Rep. 745, 111 S. W. 290; Anderson v. Republic Iron & Steel Co. 32 Ky. L. Rep. 723, 107 S. W. 220; Crowley v. Louisville & N. R. Co. 21 Ky. L. Rep. 1434, 55 S. W. 434; Richards v. Louisville & N. R. Co. 20 Ky. L. Rep. 1478, 49 S. W. 419; Meek v. Patton, 12 Ky. L. Rep. 796, and numerous others referred to in them. See also as to the general rule, 4 C. J. 833, 834. The substance of the prevailing practice as set forth in the cases and authority referred to is that a court of review

Appeal

granting new trial.

will more reluctantly interfere with the action of the trial court in granting a new trial than in refusing one, but that the authority to grant a new trial is not an review of order arbitrary one, and it can be exercised only within the sound discretion of the court, and if on appeal it appears that the court abused such discretion, his action in granting a new trial will be reversed, with directions to enter judgment upon the verdict erroneously set aside. If a new trial is granted the losing litigant is still left in court, with the right to a full presentation and hearing of his cause in the future, while if the motion is overruled his involved rights are fixed and finally determined and adjudicated. It is because of these divergent consequences that appellate courts are more reluctant to interfere in the one case than in the other; but, after all, the distinction is one more of admonitory caution to the appellate court than an enlargement of the power and discretion of the trial court, for, as will be seen, appellate interference, when a new trial is granted, is exercised only when the error "clearly appears;" i. e., when the reviewing court after exercising the proper caution is thoroughly convinced.

The practice in this court as so circumscribed is thus stated in the opinion in the Salyers Case, supra: "Conceding that in the matter of granting a new trial, the trial courts have a wide discretion, and this court will not interfere with that discretion, unless it has been abused, to set aside a verdict and judgment when there is no error in the trial, and where there is no other good reason for so doing, is, of course, an abuse of discretion by the trial court, and this court has often asserted its right to correct erroneous rulings of the circuit court, in granting a new trial. To authorize us to do so, however, it must be clearly shown that the trial court has abused its discretion. It is well established that if a circuit court er

roneously grants a new trial, and the party excepts to the ruling, and when another trial is had will move the court to set aside the last verdict and judgment, and to substitute the one formerly erroneously set aside, and his motion is overruled, upon appeal to this court, the order granting the new trial will be reviewed, and if found erroneous, the latter judgment will be reversed, and the trial court directed to enter, in its stead, a judgment upon the verdict erroneously set aside. Perkins v. Ogilvie, 148 Ky. 309, 146 S. W. 735; Ross v. Kohler, 163 Ky. 583, L.R.A.1915D, 621, 174 S. W. 36; Nolan v. Standard Sanitary Mfg. Co. 33 Ky. L. Rep. 745, 111 S. W. 293; Meek v. Patton, 12 Ky. L. Rep. 796; Richards v. Louisville & N. R. Co. 20 Ky. L. Rep. 1478, 49 S. W. 419; Curry v. Fetter, 15 Ky. L. Rep. 494; Louisville & N. R. Co. v. Ricketts, 21 Ky. L. Rep. 662, 52 S. W. 939."

The opinion in the Nolan Case, after stating the broad discretion lodged with the trial court in the matter of granting new trials and the reluctance of this court to interfere therewith, says: "While appellate courts are slow to disturb the action of the lower court in granting a new trial, they will do so when it plainly appears, as it does in this case, that there is no good reason why a new trial should have been granted."

It could serve no useful purpose to incorporate herein a statement of the facts in all of the cases referred to, or to insert further excerpts from the opinions, since the right in a proper case to reinstate the verdict erroneously set aside is well established, and indeed conceded.

The principal ground upon which the order setting aside the first verdict is sought to be upheld is the insufficiency of the evidence heard upon the first trial to sustain that verdict. Other grounds were relied on in the motion therefor, three of which are referred to in briefs of appellee's counsel, but our examination of the record convinces us that

none of the latter possess merit. Indeed, counsel seem to so concede, since they are but slightly pressed. Those three additional grounds are: (a) That the court admitted incompetent evidence offered by appellant, the propounder of the will; (b) because the court did not allow sufficient time for William G. Pengelly, an expert witness introduced by appellee, to give his testimony; and (c) because the court limited the number of witnesses each side should introduce, and refused to permit five additional witnesses offered by appellee to testify at that trial.

Grounds (a) and (b) are wholly unfounded, the record furnishing no basis whatever therefor. Ground (c) is likewise untenable, for, if it be conceded that the court erred in limiting the witnesses, it is recited in the bill of exceptions, which the court signed, that "an agreement was made by which it was stipulated that the following witnesses would testify, if permitted, to the same facts as J. E. McFarland, to wit," and then follow the names of the offered witnesses who were not allowed to take the stand.

McFarland had given it as his opinion that the paper in contest was not in the handwriting of the decedent, and assigned his reasons therefor, and the jury under the agreement were permitted to consider the testimony of the offered witnesses as being the same as his, all of which

-exclusion of witnessesagreement.

was done by agreement, and of course may not be successfully complained of by either party. This leaves as the only possible ground justifying the court's action in setting aside the verdict on the first trial that it was not sustained by sufficient evidence, the disposition and determination of which calls for a brief statement of the testimony heard upon the first trial, as well as the circumstances affecting the issue then involved.

In addition to what has already been stated it appears that the decedent owned at the time of his death 483 acres of land in Fayette

county located near the Kentucky river, dividing that county and Jessamine, and it was not, therefore, the finest quality of land in the county of his residence. At the time of his marriage he owed nearly all the purchase price of his land, amounting to some $10,000 or more, which his wife, through her labors in the household as well as work in attending to a country store, helped to pay, and she further helped him to accumulate other property besides. He likewise owned some real estate in the city of Lexington, but the nature and value of which are not shown, and he died possessed of personal property of the value of as much as $6,000.

The paper in contest is written in pencil and on a sheet of a blank ledger made of very inferior paper. The widow, within a few days after her husband's death, believing, as she had frequently stated, that he left no will, qualified as his administratrix, and by October 18, 1915 (which was one month and eight days after his death), she had made considerable progress in winding up his estate, a part of which was a public sale of his personal property. On the day mentioned, she and a colored servant were cleaning out a closet under a stairway running up from the living room of their residence, and in which her husband kept his clothing, some market reports, and other papers which he saw proper to preserve, and also kept on a shelf therein a box of medicine, which he administered to any of his stock that might become afflicted. After the medicine was taken from the box it was removed, and immediately under a newspaper upon which it was resting a sealed envelop was found, with appellant's name written thereon. It was opened, and found to contain the paper in contest. Appellant recognized it as being the handwriting of her husband, but to thoroughly satisfy herself she carried it to Mr. Threlkeld, the cashier of the Phoenix and Third National Bank of Lexington, Kentucky, with which her hus