Combs v. Wooton
| Decision Date | 18 May 1951 |
| Citation | 239 S.W.2d 981 |
| Parties | COMBS et al. v. WOOTON et al. |
| Court | United States State Supreme Court — District of Kentucky |
Barney W. Baker, Hazard, for appellants.
Don Ward, D. B. Wooton, Hazard, for appellees.
On May 15, 1948, Harold B. Morgan filed application in the Perry county court in which he requested the probation of a purported will of his mother, Mary Morgan, who died May 8, 1936, and left surviving her husband, D. D. Morgan, her son, Harold B. Morgan, and four children by a former marriage, namely, Flora Combs, Jesse Morgan, Charlie Morgan, and Debbie Smith. An answer was filed by these four children in which they denied that the proferred instrument was the will of Mary Morgan, and further pleaded that it should not be probated because it was barred by the statute of limitations. The will was admitted to probate. Contestants prosecuted an appeal to the circuit court by filing therein a certified copy of the proceedings had and papers filed in the county court. No formal petition setting out the reasons upon which contestants based their belief that the will should not have been probated was filed. Contestants were content to file only the record had in the county court and no statement of any nature setting forth the basis of their contention accompanied the record. Certain actions which had previously been litigated concerning various interests in property which had belonged to the decedent were consolidated with the instant action but since they do not affect the decision in the case, this phase of the case will not be discussed. The case was tried before a jury in the circuit court and this verdict was returned: 'We the jury do agree and find the will to be a true will and was executed in good faith.' The contestants moved that the court enter a judgment declaring the instrument propounded not to be the last will of Mary Morgan notwithstanding the verdict, which motion was overruled. Judgment was entered ordering that the contestants' appeal to the circuit court be dismissed.
Appellants contend that under Sec. 126 of the Civil Code all affirmative allegations of a pleading not denied should be taken as confessed and since appellees filed no reply in the county court to appellants' answer to the application for probation, appellants were entitled to a judgment on the pleadings under Sec. 386 of the Code.
Appellees point out that the original application in the county court stated that the proponent of the will, Harold B. Morgan, was 27 years of age at the time he made application to the county court and since the statute of limitations did not begin to run until he was 21 years of age, the probation was in time.
The Kentucky Statutes pertaining to appeals to the circuit court in will cases do not specifically, or in detail, describe the form and procedure necessary to perfect such an appeal, therefore it has been necessary for this court to discuss it on a number of occasions. In the case of Williams v. Williams, 90 Ky. 28, 13 S.W. 250, 251, the court said:
In discussing this situation in the case of Gibson v. Crawford, 259 Ky. 708, 83 S.W.2d 1, 4, it was written:
'In Tinker v. Ringo et al., 11 S.W. 605, 606, 11 Ky.Law Rep. 120, the appellant's procedure was questioned, and we said of it: 'While no specific mode is prescribed in the Civil Code by which the right to prosecute such appeal may be determined, we think it was not irregular for him to file a statement, to which, as a matter of course, it was competent for the propounders to file an answer.'
'The procedure was questioned in Pryor v. Mizner, 79 Ky. 232, and we said: 'Filing a transcript of the proceedings in the county court with the clerk of the circuit court, and having summons issued, is all that is required. No supersedeas or bond for costs is required either in the...
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Duncan v. O'Nan
...de novo determination by a jury trial on this issue: 'Is this document the true last will and testament of the testator?' See Combs v. Wooton, Ky., 239 S.W.2d 981. The contestants asserted that by reason of senility, illness, and undue influence practiced upon the testator by Ruth O'Nan and......
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Central Lumber Co. v. Sparks' Adm'r
...we have not attached much significance to the use by a witness of such expressions as 'seemed,' 'appeared,' or 'I reckon', see Combs v. Wooten, Ky., 239 S.W.2d 981, an analysis of Dickson's testimony as a whole shows clearly that he deliberately and intentionally used the word 'seemed' beca......
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Dennison v. Roberts
...seem logical under the circumstances. However, this idea has been rejected by this court many times. The rule is stated in Combs v. Wooton, Ky., 239 S.W.2d 981 (1951). In that case the appellant argued that appellee had admitted that the will was barred by the statute of limitations by fail......