Davies v. Leete

• Decision Date: 03 October 1901
• Parties: DAVIES v. LEETE et al. [1]
• Court: Kentucky Court of Appeals

64 S.W. 441

111 Ky. 659

DAVIES v. LEETE et al. ^[1]

Court of Appeals of Kentucky.

October 3, 1901

Appeal from circuit court, Greenup county.

"To be officially reported."

Appeal by David C. Davies from judgment of county court probating the will of Mary McNichols. Appeal dismissed by circuit court, and David C. Davies appeals. Reversed.

A. R Johnson and E. E. Corn, for appellant.

W. J A. Rardin, Jed B. Bibbee, and Ross & Davis, for appellees.

O'REAR J.

Mary McNichols, a resident of the state of Ohio, died in the year 1882. She was an unmarried daughter of Patrick McNichols. From a paper alleged to be her last will it appears that she attempted to dispose of all her property to her sister, Sarah J. McNichols (now Sarah J. Leete). This paper was offered for probate, it is said, to the proper court in Ohio, in February, 1883, but seems not to have been acted on till October, 1898, when it was probated. Thereafter, in January 1899, an exemplified copy of the probate proceedings on the will referred to was tendered in the Greenup county court of this state for probate and record. It is stated that the testatrix owned real estate in that county. After the death of the testatrix, and before the alleged will was probated in Ohio or offered in Kentucky, Patrick McNichols, as heir at law of his deceased daughter, Mary, sold the Greenup county real estate which she had owned at her death to one Murphy who in turn, and before the offering of the will, it seems sold and conveyed it to appellant, who was said to be in possession under those conveyances in January, 1899, when the paper was offered for probate in Kentucky. The Greenup county court, in an ex parte proceeding, probated the paper as the will of Mary McNichols. This proceeding was under section 4854, Ky. St.: "When the will of a nonresident relative to estate within this commonwealth has been proven without the same, an authenticated copy and the certificate of the probate thereof may be offered for probate in this commonwealth. When such copy is so offered, the court to which it is offered shall presume, in the absence of evidence to the contrary, that the will was duly executed and admitted to probate as a will of personalty in the state or county of the testator's domicile, and shall admit such copy to probate as a will of personalty in this commonwealth. And if it appears from such copy that the will was proved in the foreign court of probate to have been so executed as to be a valid will of lands in this commonwealth, by the law thereof such copy may be admitted to probate as a will of real estate." In March, 1900, appellant filed in the Greenup circuit court a transcript of the proceedings in the county court, and with it his petition averring that he was the owner of the real estate affected by the will, and the sole party in interest, opposed to appellee, and asked leave to prosecute an appeal from the judgment of the county court probating the will. This application was under our statute allowing any party in interest within five years from the probate in the county court to appeal to the circuit court, where the trial shall be anew. A special demurrer was filed to his petition, because he did not show that he was "a party in interest" in decedent's estate, within the meaning of our statutes; that is, that he was not an heir at law nor creditor of the testatrix. This demurrer was sustained, and his appeal dismissed. It is to review that judgment that the case is brought here. The petition did not state the nature of appellant's interest, though it alleged that he was "an interested party." However, we think this objection was not so subject to the general or special demurrers filed as it was to a motion to require appellant to define more specifically the nature of his interest, and the particular part of the estate in which interested. However, it is freely admitted in argument at the bar, and so treated by both parties, that appellant's interest is as stated above, and we have decided to...