Loy v. Loy

• Decision Date: 22 February 1952
• Citation: 246 S.W.2d 578
• Parties: LOY et al. v. LOY et al.
• Court: United States State Supreme Court — District of Kentucky

Page 578

246 S.W.2d 578

LOY et al. v. LOY et al.

Court of Appeals of Kentucky.

Feb. 22, 1952.

H. B. Jones, Columbia, for appellants.

Earl Huddleston, Columbia, for appellees.

STEWART, Justice.

This appeal is from a judgment of the Adair Circuit Court upholding the probate of an alleged missing will, purportedly destroyed over the protest of the testatrix.

There seems to be no question that the will once had a physical existence. Paul Price and Opal Price testified that they witnessed a document that was acknowledged by Edna Loy, the testatrix, and by Willis Loy, the testator, who were husband and wife, as their joint will. This occurred in 1933 or 1934 in the kitchen of the Loy home at Glensfork in Adair County. Edna Loy died on December 27, 1948. Mr. and Mrs. Price in their depositions taken on interrogatories gave identical statements to the question as to whether the will was read by or read to them and, if so, as to what it provided. The answer of each of them was to the effect that neither of them read the will nor was it read to either of them at the time, but the contents 'were explained to us by both Mr. and Mrs. Loy. The will provided that in case of the death of Mrs. Loy the property was to go to Mr. Loy, and vice versa.'

In 1938, Willis Loy was adjudged insane and was committed to the hospital for the insane at Lakeland where he remained three years. He has not since then been adjudged to be of sound mind, and, in December of 1948, he was recommitted as a lunatic to the hospital for the insane at Danville. Either before or after he became an inmate of the first institution above named, according to Edna Loy, her husband destroyed the alleged joint will over her protest at a date she did not fix. Mrs. Loy, during her lifetime, made this statement to a neighbor, Frosia Darnell, and we obtain this information from the deposition of Mrs. Darnell. Mrs. Paul Aarons, another neighbor, testified that Mrs. Loy, in her last illness, stated to her that, 'She wondered what the children (her nieces and nephews) would do with the place (her home), she hoped they would keep it.'

Mrs. Darnell also testified that Edna Loy told her that '* * * she and her husband had a joint will. That in case one died the other got the property.' Iven Loy, a brother of Willis Loy, was asked in his deposition if he knew that his brother and the latter's wife had ever executed a will. His reply was: 'Yes, he had told me several years ago that they had a will, that the survivor was to receive what was left of their estate.' This same witness stated that his insane brother '* * * Told me he burned it (the will) up.' Mrs. Myrtie Johnson, a sister of Willis Loy, gave this statement in her deposition: 'She (Edna Loy) said that they had made a joint will, ever which one died first the other was to have what was left.'

The question to be resolved is whether the evidence disclosed by the record establishes in a valid manner the contents of the missing will.

In order to probate such a document as the one in controversy, its due execution, its contents and the fact that it has never been revoked must be clearly shown. Pritchard v. Harvey, 272 Ky. 58, 113 S.W.2d 865. Each of these elements must be proven by clear and convincing evidence. Bradshaw v. Butler, 125 Ky. 162, 100 S.W. 837.

This Court has declared on...