Allen v. Lovell's Adm'x

Decision Date08 November 1946
Citation303 Ky. 238,197 S.W.2d 424
PartiesALLEN et al. v. LOVELL'S ADM'X et al.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Simpson County; Ernest J. Felts, Judge.

Petition by Martha Lucas Allen and husband, Dr. Hoyt Allen, against John M. Lovell's administratrix (Eleanora Lovell) and others, to recover damages for the destruction of a will. From judgment sustaining a demurrer to the petition plaintiffs appeal.

Judgment affirmed.

J. Lee Moore and A. B. Crow, both of Franklin, and Finn & Orendorf and L. B. Finn, all of Bowling Green, for appellants.

Rodes K. Myers, John B. Rodes, and Leland Logan, all of Bowling Green, for appellees.

DAWSON Justice.

This is essentially an action in tort to recover damages for the destruction of a will. It presents an unusual and interesting question which we believe to be one of first impression in this jurisdiction. The lower court sustained a demurrer to the petition.

Stripped of the surplusage the petition alleges that the plaintiff's grandmother owned a farm in Simpson County consisting of 637 1/2 acres; that prior to her death in October 1939, her grandmother had executed a holographic will by which she devised this farm to her two children, John Lovell and Mary Lucas (mother of the plaintiff) for their lives and at their death to plaintiff in fee; that the defendants (plaintiff's uncle and his wife) destroyed the will shortly before her grandmother died and while she was non-compos mentis; and that 'if said will had not been unlawfully and willfully destroyed by said defendants, it would have been duly probated and became the last will and testament of the said Mattie McClanahan Lovell; and said will having been unlawfully and willfully destroyed, the said plaintiff Martha Lucas Allen, has been deprived of her right of property in said 637 1/2 acre tract of land, and has been damaged by said defendants the value of her remainder interest in said tract of land of 637 1/2 acres, which is $30,000.00.'

There is no allegation that this will was ever offered for probate in the county court, nor is there an allegation that this will can not be probated.

The defendant, John Lovell, uncle of the plaintiff, died shortly after the action was instituted and the cause was revived in the name of his wife, Eleanora Lovell, administratrix with the will annexed.

At the outset it is important that we determine whether or not a will which has been lost or destroyed may be probated in this state. It is now settled in this jurisdiction that a writing which has been duly executed as a will, and never revoked becomes effectual as such on the death of the testator, and may be probated even though it has been lost or destroyed. Steele v. Price, 5 B. Mon. 58.

In order to establish such a will it is essential to prove the due execution, contents, and continued existence of the will unrevoked by the testator. Chisholm's Heirs v. Ben, 7 B.Mon., 408; Baltzell v. Ates, 181 Ky. 413, 205 S.W. 548; Wood v. Wood, 241 Ky. 506, 44 S.W.2d 539. And each of these elements must be proven by clear and convincing evidence. Bradshaw v. Butler, 125 Ky. 162, 100 S.W. 837, 30 Ky.Law Rep. 1249; Ferguson v. Billups, 244 Ky. 85, 50 S.W.2d 35. The declarations of the deceased whether before or after the testamentary act, are competent in corroboration of other evidence of the main facts, but insufficient in and of themselves to prove either of the essential ingredients. Mercer's Adm'r v. Mackin, 14 Bush 434; Atherton v. Gaslin, 194 Ky. 460, 239 S.W. 771; Wood v. Wood, supra, and Ferguson v. Billups, supra. This in effect means that the contents of a missing will must be established by a witness who saw or read the will and who can give the substance of its provisions. Wood v. Wood, supra.

The petition under consideration here alleges that plaintiff's grandmother frequently stated, in the presence of members of her family and intimate friends, that the will described had been written by her in her own handwriting. There is no allegation in the petition that any person had either seen or read the will. Neither is there an allegation that the testatrix's statements would be the only evidence which could be introduced in support of a motion to probate the destroyed will, and thus create an inference that for this reason the missing will can not be probated.

The time in which a will may be offered for probate is controlled by Section 413.160, KRS. Allen v. Forman, 96 Ky. 313, 28 S.W. 497; Mullins v. Fidelity & Deposit Company of Baltimore, Maryland, Ky., 100 S.W. 256; Foster v. Jordan, 130 Ky. 445, 113 S.W. 490, and others. Since testatrix died in October 1939, the ten year period of limitation for the probate of her will has not expired.

With the foregoing as a basis we proceed to a consideration of the question involved, which is--may an action in tort be maintained for the destruction or suppression of a will?

There are few authorities which bear directly on this question. Most of them have been collected in an annotation to the opinion of Creek v. Laski, 248 Mich. 425, 227 N.W. 817, 65 A.L.R. 1113, at page 1119.

A splendid discussion of the question may be found in an article by Alvin E. Evans, Dean of the Law School, University of Kentucky, published in the University of Pennsylvania Law Review, Vol. 93, page 187 (196).

Creek v. Laski, supra, is urged as controlling. This was an action in tort to recover damages for malicious destruction of a will. By a divided court the action was allowed. There the plaintiff was unable to establish a legacy because of her inability to produce two witnesses in support of the gift, which the Michigan law required, and it is made clear from the majority opinion that the action in tort was the only available remedy. In distinguishing Thayer v. Kitchen, 200 Mass. 382, 86 N.E. 952, it is pointed out that in the Thayer case it was held that an action in tort would not lie because the probate court had exclusive jurisdiction over wills, and the statutes provided a clear remedy. Creek v. Laski, supra, is acceptable authority for the proposition that the unlawful and malicious destruction of a will, resulting in loss to a legatee, is a wrong for which there must be a remedy, but we do not think that it extends beyond this long accepted proposition of law. This principle was...

To continue reading

Request your trial
25 cases
  • Beckwith v. Dahl
    • United States
    • California Court of Appeals Court of Appeals
    • May 3, 2012
    ...under the “general principle of law that whenever the law prohibits an injury it will also afford a remedy.” ( Allen v. Lovell's Adm'x (1946) 303 Ky. 238, 197 S.W.2d 424, 426; see also Morton v. Petitt (1931) 124 Ohio St. 241, 177 N.E. 591, 593;Dulin v. Bailey (1916) 172 N.C. 608, 90 S.E. 6......
  • Markowitz v. Villa
    • United States
    • Connecticut Superior Court
    • January 26, 2017
    ...in the alternative, it must be alleged and shown that such probate is impossible under the circumstances of the particular case. Allen v. Lovell's Adm'x, supra; Thayer Kitchen, 200 Mass. 382, 86 N.E. 952; Riggs v. Rankins' Ex'r, 268 Ky. 390, 105 S.W.2d 167; Sprowl v. Lockett, 109 La. 894, 3......
  • Estate of Legeas, In re
    • United States
    • California Court of Appeals Court of Appeals
    • March 10, 1989
    ...independent tort action for damages caused in the intentional destruction, concealment, or spoliation of a will. (Allen v. Lovell's Adm'x (1946) 303 Ky. 238, 197 S.W.2d 424; Creek v. Laski (1929) 248 Mich. 425, 227 N.W. 817; Wilburn v. Meyer (Mo.App.1959) 329 S.W.2d 228; Dulin v. Bailey (19......
  • Nelsen v. Nelsen
    • United States
    • Idaho Supreme Court
    • April 19, 2022
    ...afford a remedy." Beckwith v. Dahl , 205 Cal.App.4th 1039, 141 Cal.Rptr.3d 142, 152 (4 Dist. 2012) (quoting Allen v. Lovell's Adm'x , 303 Ky. 238, 197 S.W.2d 424, 426 (1946).Still, the California court recognized there was a policy concern associated with adopting the tort, explaining that ......
  • Request a trial to view additional results
1 books & journal articles
  • After Beckwith: an Update on the Interference With Inheritance Tort in California
    • United States
    • California Lawyers Association California Trusts & Estates Quarterly (CLA) No. 27-2, January 2021
    • Invalid date
    ...v. Sackett (1996) 671 N.E.2d 160); Iowa (Huffey v. Lea (Iowa 1992) 491 N.W.2d 518); Kentucky (Allen v. Lovell's Adm'x (Ky.Ct.App. 1946) 197 S.W.2d 424); Louisiana (McGregor v. McGregor (D.Colo. 1951) 101 F.Supp. 848 (apparently applying Louisiana law); Maine (Cyr v. Cote (Me. 1979) 396 A.2d......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT