Beall v. Cunningham

• Decision Date: 04 May 1843
• Citation: 42 Ky. 390
• Parties: W. & A. Beall v. Cunningham et al.
• Court: Kentucky Court of Appeals

42 Ky. 390

W. & A. Beall v. Cunningham et al.

Court of Appeals of Kentucky.

May 4, 1843

Wills. Codicils.

ERROR TO THE WASHINGTON CIRCUIT.

Morehead & Reed and McHenry for appellants

Owsley & Goodloe and Shuck for appellees.

OPINION

EWING CHIEF JUSTICE.

The facts appearing in the case.

AFTER the decision of this Court, reversing the order of the County Court of Washington, admitting to record, as the last will and testament of Richard Beall, deceased, a paper bearing date in 1825, and wholly written by himself, (1 Ben. Monroe, 399,) Cunningham and wife and others, claiming as devisees, exhibited to the County Court, for probate, a paper bearing date in 1827, with a codicil thereto attached bearing date in 1832, and moved the Court to admit the same to record, as a substantial copy of the last will and codicil of the decedent. The paper proposed to be recorded, after devising all his estate to his wife, for her life, who was then living but who has since died, directed all his estate to be sold, except a negro girl, which he bequeathed to his daughter, Mrs. Scheahan, and directed ten dollars to be paid to his son William, whom he says he had before advanced, and the residue to be divided into four equal parts, one part to go to Mrs. Scheahan, if living, if not, to her heirs; one part to his daughter, Mrs. Cunningham, if living, if not, to her heirs; one part to his daughter Susan Beauchamp, if living, if not, to her heirs; and one part to be equally divided betweed his son, Andrew Beall, his grand children, Elizabeth Wright's heirs, and his grand son, Lewis Abel, and appointed his wife and Robert Cunningham, executrix and executor of the will. The copy of the codicil attached, is in the following words:

" I, Richard Beall, do make the following codicil to my last will and testament. I devise to James Abel, two dollars, which is to be all of my estate that he is to get. All the property that I gave in the within will to Susan Beauchamp, I give to her and her heirs forever. I also give to said Susan Beauchamp and her heirs forever, all the part of my estate, that in the within will I give to Lewis Abel, as witness my hand and seal this 31st of March, 1832.

RICHARD BEALL, (Seal. )

Attest,

S. T. Offutt,

Peter Brown,

Walter Hamilton. "

The motion to record was opposed by Wm. Beall and Andrew Beall, who exhibited for record, a paper purporting to be the last will and testament of the decedent, bearing date in 1811, by which they were liberally provided for. On the hearing the County Court sustained and ordered to record, the aforesaid copies, as substantial copies of the last will and codicil of the decedent, and rejected the paper bearing date in 1811. From this order the case was taken to the Circuit Court, where the judgment of the County Court was affirmed, and an appeal taken from this affirmance to this Court.

We have examined the evidence in this record, and deeming it a useless consumption of time and labor to comment upon its details, would remark, that we are perfectly satisfied, from the proofs in the cause, that the decedent procured the original, of which the paper exhibited is a true copy, to be drafted in 1827, intending it for his will; that it was dictated by him, taken home from his daughter's at whose house it was drafted, and carefully preserved, and always, to the day of his death, treated as his will, by himself and by different members of his family, and contained precisely that disposition of his estate which he intended to make, and repeatedly declared he had made by his will. But at the time it was drafted he had his arm broken, and did not sign it or have it attested as his will, but took it home with him saying he intended to sign it and have it attested: but whether it was ever signed or attested, does not certainly appear. That in 1832 he procured a codicil to be written on the same paper, calling and treating the paper as his will, containing substantially the provisions of the copy exhibited; that this codicil was signed by him, and attested by two or three witnesses, and the paper, with the codicil, carefully replaced in the till of his chest, where he kept his valuable papers; that he died under the full conviction that the paper and codicil were secure in the place where he had put them, and there is not the slightest evidence that he ever intimated any dissatisfaction with the will, or with any one of the devises in it, or that he intended to alter or...