Doyle v. Brady

• Decision Date: 23 May 1916
• Citation: 170 Ky. 316,185 S.W. 1133
• Parties: DOYLE v. BRADY.
• Court: Kentucky Court of Appeals

185 S.W. 1133

170 Ky. 316

DOYLE v. BRADY.

Court of Appeals of Kentucky.

May 23, 1916

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Suit by James Brady, executor of the estate of Andrew J. Brady deceased, against Katie Doyle. Judgment for plaintiff, and defendant appeals. Reversed, with direction to overrule the demurrer to the answer.

Richard Dietzman, of Louisville, for appellant.

Robt. T. Burke, Sheild, Campbell & McAtee, and John L. Woodbury all of Louisville, for appellee.

CLARKE J.

Rev Andrew J. Brady died a resident of Jefferson county, Ky December 30, 1912, leaving a will to which John B. Gleeson and Katie Doyle were the attesting witnesses. This will was admitted to probate by the Jefferson county court on January 7, 1913, upon the testimony of said John B. Gleeson, one of the subscribing witnesses, who also proved the attestation of Katie Doyle, the other subscribing witness. This suit was filed in the Jefferson circuit court by the executor to settle the estate and for a judgment declaring the effect of clause 5 of the will, which is as follows:

"I give to my faithful housekeeper, Katie Doyle, the sum of five thousand dollars."

Katie Doyle filed an answer, alleging that at the time she attested said will she was not aware of any of its provisions; that she did not give any evidence and was not examined as a witness in any probate proceeding, nor was she in court at the time; that the will was proven only and admitted to probate solely by the evidence and testimony of the other witness to said will, John B. Gleeson, and she prayed that the devise to her be declared valid, and for a judgment for the amount thereof. The demurrer to her answer was sustained, and a judgment entered, declaring the bequest to her void and of no effect, and that the $5,000 bequeathed to her should pass under the laws of descent and distribution to the heirs of said Andrew Brady.

The only question before us upon this appeal is the correctness of the judgment that by attesting the will Katie Doyle lost the devise to her. The question raised has never been passed upon by this court. In the cases of Floore v. Green, 83 S.W. 133, 26 Ky. Law Rep. 1073, and Skinner v. Rasche, 165 Ky. 108, 176 S.W. 942, the point was mentioned, but expressly waived. Section 4836 of the Kentucky Statutes is as follows:

"If any person who attests the execution of a will shall, after its execution, become incompetent to be admitted a witness to prove the execution thereof, such will shall not, on that account, be invalid. And if a will is attested by a person to whom, or to whose wife or husband, any beneficial interest in any estate is thereby devised or bequeathed, if the will may not be otherwise proved, such person shall be deemed a competent witness; but such devise or bequest shall be void, except that, if such witness would be entitled to any share of the estate of the testator in case the will was not established, so much of his share shall be saved to him as shall not exceed the value of what is so devised or bequeathed."

It is agreed by counsel representing the parties to this appeal that the decision of the point before us depends largely on the meaning to be given the words in the above statute "if the will may not otherwise be proved," but it is contended by counsel for appellees that the proper construction is determined by section 4828 of the Kentucky Statutes which reads thus:

"No will shall be valid unless it is in writing with the name of the testator subscribed thereto by himself, or by some other person in his presence and by his direction; and, moreover, if not wholly written by the testator, the subscription shall be made or the will acknowledged by him in the presence of at least two credible witnesses, who shall subscribe the will with their names in the presence of the testator."

Unquestionably the one must be construed in the light of the other, as both are parts of one law. However, it is perfectly apparent that the latter section refers to the execution of the will, while the former refers to the proof of the execution or probate of the will. Counsel for appellees concede that the will was properly executed, and that it is valid in all respects except as to the bequest to appellant. Having conceded this, they seem to admit thereby that both of the attesting witnesses were "credible" or "competent" as provided by section 4828 of the Statutes, at the time they attested the execution of the will, and it is further admitted that neither of these attesting witnesses has become incompetent since its execution to be admitted as a witness to prove the execution thereof, so that both of said witnesses are competent and credible as the words are used in these two statutes, and no question of any possible difference in the meaning of these words as used in these sections is raised as, in fact, there is no difference in their meaning as used. Having progressed thus far in accord, there appears to remain but the following portion of section 4836 about which there are any differences as to the proper construction:

"And if a will is attested by a person to whom, or to whose wife or husband, any beneficial interest in any estate is thereby devised or bequeathed, if the will may not be otherwise proved, such person shall be deemed a competent witness; but such devise or bequest shall be void."

It is further agreed by contending counsel that it is so well established as a rule of common law observed in this jurisdiction as to need no citation of authorities to support it that a will may be admitted to probate upon the testimony of either one of the subscribing witnesses who also proves the attestation by the other. It therefore would seem quite easy to arrive at the conclusion that the portion of the statute above quoted, from the very language used, can only mean that Katie Doyle shall be a competent witness to prove the execution of this will "if it may not otherwise be proved" by the testimony of Gleeson, but in such event as it becoming necessary, because of the inability to procure the testimony of Gleeson, to prove it by the testimony of Katie Doyle, the devise or bequest to her shall be void.

The seeming simplicity of this construction, however, has not been sufficient to prevent this question from becoming involved in much doubt. In the states of Virginia and West Virginia the statutes upon the attestation and probation of wills are identical upon the question involved with ours, yet the Virginia Supreme Court of Appeals in the case of Bruce v. Shuler, 108 Va. 670, 62 S.E. 973, 35 L.R.A (N. S.) 686, 15 Ann.Cas. 887, have adopted a construction which holds that the mere attestation of a will by one of the two required attesting witnesses avoids the legacy therein to such witness while the Supreme Court of West Virginia, in the case of Davis v. Davis, 43 W.Va. 300, 27 S.E....