Brookie v. Portwood

• Decision Date: 23 September 1886
• Parties: BROOKIE and others v. PORTWOOD and others.
• Court: Kentucky Court of Appeals

1 S.W. 637

84 Ky. 259

BROOKIE and others v. PORTWOOD and others.

Court of Appeals of Kentucky.

September 23, 1886

An executor who has violated his trust, and by fraud secured the rejection of his testator's will, will not be estopped from having the fraudulent orders and judgments set aside but a court of equity will rather encourage him to undo the wrong he has done the estate.

BENNETT J.

A Miller, of Anderson county, Kentucky, died, leaving a last will, which was signed by him, and duly attested by the subscribing witnesses. After devising to his wife, Lucinda Miller, the sum of $500, which, by antenuptial contract, she was to receive at his death in lieu of any interest as widow in his estate, he directed that all of his real and personal property be sold by his executors after his death, and the proceeds after the payment of his debts and funeral expenses and the legacy of $500 to said Lucinda Miller, to be divided in eight equal parts, he having that number of children. He then devised to each of his four sons one-eighth part absolutely, and one-eighth part to his daughter Louisa Portwood, wife of Ambrose D. Portwood, to be held by her to her own exclusive use and benefit, free from the control or debts of her said husband. The three remaining eighths he directed his executors to hold, one-eighth each for the benefit of his three daughters Mary Ann Wells, Susan E Brookie, and Emily Seavey; but none of said sums, or its profits or increase, was to be paid to any one of his said daughters as long as her husband should live; and, if he should die first, then said estate should be hers absolutely, or, if she should die first, leaving children, then her said estate should go to them absolutely; if leaving none, then said estate should go back to his estate, to be divided equally among his remaining children. The testator then appointed C. Miller, his son, and Ambrose D. Portwood, his son-in-law, executors of his will.

The said executors offered, or rather pretended to offer, said will for probate in the Anderson county court, which will was rejected by the order of that court. Mrs. Lucinda Miller then appealed to the Anderson circuit court from the order of the county court rejecting said will. Afterwards she dismissed her appeal absolutely. The said executors then appealed to the Anderson circuit court from the order of the county court rejecting said will. Afterwards said appeal, by an agreed judgment, was dismissed absolutely, and the order of the county court rejecting said will sustained, and the will declared to be null and void. Afterwards, Ambrose D. Portwood, one of the executors of the will, and his children, instituted an equitable action in the Anderson circuit court against said Brookie, Wells, and all the devisees, both direct and contingent, under the will, not joined as plaintiffs in this action, for the purpose of setting aside the agreed judgment of the Anderson circuit court sustaining the order of the county court rejecting said will, and declaring it null and void; also the judgment dismissing the appeal of Mrs. Miller absolutely, and reinstating them upon the docket, and granting a new trial, upon the ground that "the rejection of said will by the county court, the dismissal of Mrs. Miller's appeal in the circuit court, and the agreed judgment annulling said will, etc., were each and all obtained by fraud and management," etc. Issue was joined, and the proof taken, and upon the hearing of the cause the lower court, by its judgment, sustained the prayer of the petition. From that judgment appellants have appealed to this court.

The pleadings and evidence in the cause establish the following series of facts incontrovertibly, which bristle with fraud.

(1) After the death of the testator, and, the contents of the will had been made known, the direct devisees named in the...