Henry v. Spurlin

• Decision Date: 21 February 1939
• Parties: Henry v. Spurlin et al.
• Court: United States State Supreme Court — District of Kentucky

277 Ky. 114

Henry v. Spurlin et al.

Court of Appeals of Kentucky.

February 21, 1939.

1. Wills. — A judgment of probate in county court having jurisdiction is conclusive under statute of wills unless set aside on appeal to circuit court in accordance with prescribed mode (Ky. Stats., sec. 4824 et seq.).

2. Wills. — A will contest, denominated an appeal, is a special proceeding in rem, re-examining reality of instrument, but since the statute requires that interested persons be made parties, the contest is given the character of an action inter partes (Ky. Stats., sec. 4824 et seq.).

3. Wills. — A "will contest" is not exactly a civil action in a strict sense, but is a judicial inquiry, operating in nature of an appeal from order of probate in county court (Ky. Stats., sec. 4824 et seq.).

4. Wills. — A will contest is not cognizable in court of chancery because

powers of court of law, defined by probate statutes, are ample (Ky. Stats., sec. 4824 et seq.).

5. Wills. — An appeal in a will contest is not embarrassed by observance of restrictive statutory provisions relative to methods and procedure to be followed generally in prosecuting an appeal from judgments of county court and other tribunals to circuit court (Civil Code of Practice, sec. 724; Ky. Stats., secs. 4850, 4859).

6. Wills. — The silence of the statutes as to form or method for appealing from county court's order of probate of a will, permits prosecution to be, according to mode adopted, or practice sanctioned, for many years, and technical strictness is not required (Civil Code of Practice, sec. 724; Ky. Stats., secs. 4850, 4859).

7. Wills. — In determining whether will contests in circuit courts are "appeals" from county court orders probating wills, substance and purpose of the pleadings control and not their style (Civil Code of Practice, sec. 724; Ky. Stats., secs. 4850, 4859).

8. Judgment. — A devisee was in privity with his testatrix so as to be bound by a judgment which was entered by testatrix' consent.

9. Wills. — Where, after county court probated will, heirs of testator, as "plaintiffs," filed in circuit court a "petition" against testator's wife, who was his executrix and devisee, as "defendant", to have purported will set aside, alleging that instrument was not a will, that testator did not have sufficient mental capacity, and was unduly influenced, petition presented an "appeal" from probate of will, so that after wife filed an answer traversing the allegations, a judgment entered by agreement of the parties was valid and bound wife's devisee (Civil Code of Practice, sec. 724; Ky. Stats., secs. 4850, 4859).

10. Wills. — An agreement by all heirs that a will should not be probated, so that there could be an equal distribution of the estate among themselves, is valid.

Appeal from Madison Circuit Court.

HARVEY T. LISLE and J.F. WINN for appellant.

JOHN NOLAND and S.D. PARRISH for appellees.

Before WILLIAM J. BAXTER, Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Affirming.

If an agreed judgment entered in a proceeding contesting the will of W.A. Williams is void, the judgment appealed in this case must be reversed; otherwise it should be affirmed.

When written in 1912, the principal portion of his will read as follows:

"I will, bequeath and devise to my beloved wife, Mary A. Williams, all of my property, real and personal, to be hers absolutely. It is my desire and I request that if I predecease her, then before her death she make a will giving to her people one-half (1/2) of my property and to my people the other one-half (1/2)."

When offered for probate in the Madison County Court in 1929, each line of the last sentence was marked out in ink and the endorsement added, "The above lines mark out. By W.A. Williams, Nov. 1, 1922." The county court probated the will with this sentence eliminated as having been revoked, so that all the testator's estate was devised to his wife absolutely. About a year later the heirs of W.A. Williams filed in the circuit court a "petition" against the widow, individually, and as executrix of her husband's estate. They were designated "plaintiffs" and she "defendant." This pleading alleged that "the paper and alterations as probated" was not the last will and testament of W.A. Williams. Appropriate references were made to the order of probate in the county court. With elaboration, it was charged that the testator did not have mental capacity sufficient to make the will; that he was unduly influenced by his wife; that the alteration was not made or directed to be made by him and was made by the defendant or others conspiring with her. It was prayed that the paper be set aside, together with the alteration and cancellation, and declared not to be the will of W.A. Williams. In her capacity as executrix and individually Mrs. Williams filed an answer traversing the allegations of the petition. At the next term of court an "amended petition" was filed in which the "plaintiffs" specifically withdrew from the "petition" all of the allegations of undue influence and those referring to the alteration. The pleas that the document was not Williams' will and that he was mentally incapacitated were not withdrawn. On the same day there was entered a judgment in which it is recited that the parties had agreed that the proceeding should be and "it is dismissed settled" and that the words which had been lined out were a part of the will; that by consent the order of probate "to the extent that it adjudges that those words are not a part of said will is reversed and annulled." The judgment directs the clerk to certify a copy of it to the county court clerk who is directed to make proper record as therein specified. This order was signed by the attorneys for the plaintiff, by Mrs. Williams, individually, and by her as executrix, and by "J.M. Benton, attorney for defendant." On the same day an order was entered noting the withdrawal of Burnam & Greenleaf as counsel for the defendant.

Later Mrs. Williams was adjudged to be of unsound mind. Her committee filed a suit for a declaratory judgment construing the will as thus probated by the circuit court. It was finally construed to devise a life estate to the widow with the remainder divided between her heirs and testator's heirs. Williams v. Williams' Committee, 253 Ky. 30, 68 S.W. (2d) 395. The widow died in 1936, and about a year later her will was probated. She devised all of her estate to her grandnephew, Garnett B. Henry. Meanwhile, G.R. Spurlin and others had purchased at a judicial sale land which had belonged to W.A. Williams. Henry then brought this action in ejectment, claiming title and the right of possession thereto as the devisee of Mrs. Williams. The pleadings eventually raised issues of whether the judgment in the contest proceeding is void or valid, and whether the plaintiff is estopped to maintain this action. The circuit court decided the case upon the pleadings and dismissed the petition. The plaintiff appeals.

Appellant's arguments, supported by his pleadings, in their essence are: (1)...