Eckert v. Givan

• Citation: 298 Ky. 621,183 S.W.2d 809
• Parties: ECKERT et al. v. GIVAN et al.
• Decision Date: 21 November 1944
• Court: Court of Appeals of Kentucky

183 S.W.2d 809

298 Ky. 621

ECKERT et al. v. GIVAN et al.

Court of Appeals of Kentucky

November 21, 1944

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division; B. H. Farnsley, Judge.

Action by Ann Eckert, widow, and others against Howard Givan administrator de bonis non, and others, to contest the will of William B. Heller, deceased. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Joseph W. Cambron, of Louisville, for appellants.

Harold Marquette and Gene Sims, both of Louisville, for appellees.

LATIMER Justice.

William B. Heller, testator, died on October 2, 1942. On October 10 1942, his will, bearing date November 26, 1937, was duly admitted to probate in the Jefferson County Court. Ella Heller, widow of the deceased testator, was named as executrix in said will, and on the date of the probation of the will, she duly qualified as such executrix in the Jefferson County Court. On January 15, 1943, while the said widow was administering the estate of her deceased husband, she died intestate, having never renounced her husband's will.

The second paragraph of said will provided as follows:

'Second. I devise and bequeath to my beloved wife, Ella Heller, for and during her natural life all of my real estate and personal property, including my income therefrom, with remainder after her death in fee simple to my son, George Morris Heller, and, incident in the premises, and in the event emergency or necessity shall require, my Executor hereinafter named is hereby given full power and authority to sell and make conveyance of any and all of my real estate, and to sell and transfer any and all of my personal property, including any stock certificates or other documents requiring my signature for transfer, but only upon the written consent and approval of my said son, George Morris Heller, in order that necessary funds may be secured for the support and maintenance of either or both my said wife and son.'

The son, George Morris Heller, who, according to the will, was to receive the remainder in fee simple after the death of Ella Heller, predeceased his father about four years. After the death of Ella Heller, her administrator, Fred Hauler, together with the same parties in the instant action, brought a suit in the Jefferson Circuit Court for the construction of the said will, contending that Ella Heller received under said will a fee simple title to the estate of her deceased husband. In that action the Chancellor held that the widow took a life estate only; that the devise to the predeceased son of the remainder lapsed; that the testator died intestate as to the remainder in his entire estate; that the entire estate passed under the laws of intestacy to the testator's surviving brother, and is now vested in the deceased brother's surviving widow and children; and that the testator's widow, having taken under the will of her husband and having failed to renounce the provisions of the will, had no dower interest in his estate. That judgment was appealed from, but the appeal was dismissed because the record appears to have been lodged in the Clerk's office too late. However, in dismissing the action, said order was accompanied by a letter as follows:

'Office of

'Clerk of Court of Appeals

'Frankfort

'November 9, 1943

'Hon. Joseph W. Cambron

'Louisville, Kentucky

'Hon. Gene Sims

'Louisville, Kentucky

'In Re: Heller's Admr. et al. v. Heller's Admr. de bonis non.

'Gentlemen:

'Appellants' motion to set aside order dismissing the appeal and to reinstate same, was overruled by the Court today, with a notation that the Court had examined the record and were the case considered on its merits, the judgment would be affirmed.

'Very truly yours,

'(Signed) Charles K. O'Connell, C.C.A.

'By D. Owens, D.C.'

Thereafter, the same parties plaintiff, undertaking a contest of the will of William B. Heller, deceased, effected an appeal to the Jefferson Circuit Court from the order of the Jefferson County Court probating his will. A general demurrer was sustained to both the statement and the amended statement of appeal from said order. The plaintiffs having declined to plead further, judgment was entered for defendants. Plaintiffs thereafter prayed for an appeal to the Court of Appeals from said judgment, which was granted and this action is now before this court on appeal from said judgment.

There are three questions on the part of the appellants herein, and, as stated, in their brief, they are as follows: (1) Can the blood heirs of the widow contest the will? (2) Are they estopped and do they stand in the same shoes in which the widow stood? (3) Do they have any interest? The principles involved in the preceding questions will be hereinafter considered without regard to the order of questions as set out in appellants' brief.

It is obvious that the heirs of Ella Heller had no interest in her estate until her death. The first question, then, to consider is the interest Ella Heller had at the time of her death in her husband's estate, or what property or interest, if any, had vested in her out of that estate, which could be the subject of inheritance by the said heirs.

Ella Heller qualified as the executrix under the will of her deceased husband. S...