Egbert v. Egbert

• Decision Date: 13 January 1920
• Citation: 186 Ky. 486,217 S.W. 365
• Parties: EGBERT v. EGBERT ET AL.
• Court: Kentucky Court of Appeals

217 S.W. 365

186 Ky. 486

EGBERT v. EGBERT ET AL.

Court of Appeals of Kentucky.

January 13, 1920

Appeal from Circuit Court, Caldwell County.

Proceedings to contest will of N.W. Egbert by Mrs. Willie Egbert. Proceedings dismissed on motion of J. M. Egbert and others and contestant appeals. Affirmed.

R. W Lisanby, of Princeton, for appellant.

J. C Gates and J. E. Baker, both of Princeton, for appellees.

CLAY C.

N.W. Egbert a resident of Caldwell county, died testate on April 1, 1918, leaving a widow, Mrs. Willie Egbert, but no children. By his will, which was dated June 14, 1917, he devised to his widow the same estate which she would have received had he died intestate. The other portion of his estate he devised to his two brothers, with remainder at their death to certain nephews and nieces. John R. Wylie and H. M. Jones were named as executors. The will was probated on April 15, 1918, and the executors qualified by taking the required oath and executing the bond provided by law.

On October 4, 1918, the widow filed in the Caldwell circuit court a paper styled, "Statement, Petition, and Appeal," by which she undertook as the sole complaining party to appeal from the order of probate and to contest the will on the ground of testamentary incapacity and undue influence. The executors and the beneficiaries of the will, other than the widow, moved the court to dismiss the appeal on the ground that the widow, who took under the will in question the same estate she would have taken had the testator died intestate, had no such interest in the estate as entitled her to contest the will. Pending the motion, the widow filed an amended "Statement, Petition, and Appeal," basing her right to contest the will on the following grounds: (1) The executors qualified before the second county court day after the death of the decedent, that neither was related to the decedent in any manner, and that she was thereby deprived of her legal right either to qualify as the personal representative of the decedent or to name the personal representative; (2) many years prior to the death of the testator he wrote, executed, and published in his own handwriting his last will and testament, which he safely kept and preserved, and by which he devised to the petitioner a life estate in all of his property.

It is well settled that a party having no legal interest in the estate to be affected by the probate of the will cannot maintain a proceeding to contest the will. Floore et al. v. Green et al., 83 S.W. 133, 26 Ky. Law Rep. 1089; Brooks v. Paine's Ex'rs, 123 Ky. 271, 90 S.W. 600, 28 Ky. Law Rep. 857. It is likewise the rule that a widow cannot contest her husband's will if without such contest she can obtain the same substantial benefits by renouncing the provisions of the will and electing to take under the statute (Mercer v. Smith, 107 S.W. 1196, 32 Ky. Law Rep. 1003; Mercer v. Smith's Guardian, 107 S.W. 1197, 32 Ky. Law Rep. 1008), and there is every reason why the same rule should apply where, as in this case, the widow takes under the will the same estate she would have taken had her husband died intestate ( Thompson v. Turner, 173 Ind. 593, 89 N.E. 314, Ann.Cas. 1912A, 740). In view of these principles it is clear that the widow cannot contest the will in question unless the existence of the alleged prior will, or the fact that the widow was prevented from administering on the estate, gives her such right.

It may be conceded that persons who are the beneficiaries in a will have such an interest as entitles them to contest another alleged will of the same testator which destroys or reduces their share in his estate. Re Langley, 140 Cal. 126, 73 P. 824; Buckingham's Appeal, 57 Conn. 544, 18 A. 256; Churchill v. Neal, 142 Ga. 352, 82 S.E. 1065; McDonald v. McDonald, 142 Ind. 55, 41 N.E. 336; Crowley v. Farley, 129 Minn. 460, 152 N.W. 872; Turhune v. Brookfield, 1 Redf. Sur. (N. Y.) 220; Merrill v. Rolston, 5 Redf. Sur. (N. Y.) 220; Murphy v. Murphy, 65 S.W. 165, 23 Ky. Law Rep. 1460.

Without attempting to lay down any rule as to what the contestant should allege with respect to a prior will, it is sufficient...