Herrick v. Wills
| Citation | 333 S.W.2d 275 |
| Parties | Elizabeth Slight HERRICK et al., Appellants, v. Spencer WILLS et al., Appellees. |
| Decision Date | 02 October 1959 |
| Court | United States State Supreme Court (Kentucky) |
Philip Hargett, Maysville, for appellants.
D. Bernard Coughlin, John H. Clarke, Jr., Maysville, for appellees.
CLAY, Commissioner.
In this action to sell real estate devised under the will of Mary Scott Brooks, it was alleged in the complaint that defendant appellants had forfeited their remainder interests by bringing an earlier suit to contest the will. The will contained a "no contest" clause. The trial court adjudged a forfeiture.
A will contest had been instituted over ten years ago, and as shown by the record of that suit, the present defendants were named as party plaintiffs. By pleading in this action, defendants denied that anyone was authorized to bring the contest suit in their names, and there is no evidence they personally appeared in that proceeding. The issue in the present controversy is whether or not a reputable attorney, Andrew V. Fox, who undertook to represent defendants in the contest suit, had authority to do so. The burden of establishing his agency was upon appellees. Bogner v. Kendle, 309 Ky. 221, 217 S.W.2d 211. However, any evidence tending to establish agency, direct or indirect, including circumstantial evidence, was competent. Crump v. Sabath, 261 Ky. 652, 88 S.W.2d 665; Hayes v. Berea College, 281 Ky. 492, 136 S.W.2d 563.
The record of the former suit, plus the testimony of Mr. Fox, was amply sufficient to make a prima facie case for appellees, and the burden was shifted to defendants to establish that in spite of their being named parties in the contest suit, that proceeding was prosecuted without their authority. They failed to introduce any direct evidence denying this authority. Defendants proposed to take 'interrogatories' (apparently addressed to the issue), which the trial court prohibited them from doing. On this appeal they do not question that ruling of the trial court, which appears to have been based on appellees' theory that the contest suit was res judicata as to whether or not it was properly brought in defendants' names.
On the record before us there was sufficient evidence to establish that defendants had forfeited their interests under Mary Brooks' will.
The motion for appeal is denied and the judgment stands affirmed.
On petition for rehearing appellants, for the first time, raise certain procedural questions and undertake to attack rulings of the...
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Reed v. Reed
...powerless to award Jean any alimony in excess of that which Clyde had offered. KRS 403.060. We reject it. RCA 1.350(b). Herrick v. Wills, Ky., 333 S.W.2d 275 (1959); Stewart v. Jackson, Ky., 351 S.W.2d 53 (1961), and Com., Dept. of Highways v. Thomas, Ky., 427 S.W.2d 213 2 Clyde does not ar......
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Kentner v. Gulf Ins. Co.
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