Marshall's Executor v. Pogue

• Citation: 226 Ky. 767
• Parties: Marshall's Executor v. Pogue et al.
• Decision Date: 11 December 1928
• Court: United States State Supreme Court — District of Kentucky

226 Ky. 767

Marshall's Executor v. Pogue et al.

Court of Appeals of Kentucky.

Decided December 11, 1928.

Appeal and Error. — Executor of earlier will than one admitted to probate, which was propounded by another executor, held to have right to appeal from orders rejecting earlier will and admitting later will to probate, making it error to dismiss appeals and deny trial of contest.

Appeal from Mason Circuit Court.

J.M. COLLINS and A.D. COLE for appellant.

WORTHINGTON BROWNING & REED for appellees.

OPINION OF THE COURT BY JUDGE WILLIS.

Reversing.

This appeal questions the right of a nominated executor in an earlier will to resist the probate of a later one of the same testator on the grounds of mental incapacity and undue influence.

Susan A. Marshall executed a paper dated August 13, 1915, purporting to be her will, in which James M. Collins, of Maysville, Ky., was nominated as executor. That paper was left in the custody of Collins, to be probated as her will in the event of testator's death. She made several codicils to the alleged will; the last one being dated April 10, 1923.

On January 3, 1924, another paper purporting to be her will was executed by the same Susan A. Marshall, in which she nominated the Bank of Maysville, of that city, as executor. Testatrix died on June 15, 1927, and at the next ensuing term of the Mason county court both papers were presented for probate. The later will was admitted to probate, and the earlier will was rejected. Collins appealed to the Mason circuit court from the order probating the will of January 3, 1924, and also from the order rejecting the earlier will offered by him. The circuit court dismissed the appeal of Collins on the ground that a nominated executor in an earlier will had no right to appeal from orders probating a will executed later, and rejected the one in which he had been nominated as executor. Collins appeals to this court for a reversal of the order of the circuit court.

It was held in Wells v. Wells, 4 T.B. Mon. 152 (16 Am. Dec. 150), that a will may be presented for admission to probate by either an executor, legatee, or devisee.

In Pryor v. Mizner, 79 Ky. 232, the sole question presented was whether a nominated executor in a rejected will had such an interest as gave him the right to appeal from a judgment of the county court refusing to admit the will to probate. It was held that he had such right, and the court reversed an order of the circuit court dismissing an appeal from the county court taken by the nominated executor. The opinion of the court was not rested, as counsel seem to suppose, on any particular provisions of the rejected will, but it was predicated upon the right and duty of a person chosen to execute a will to exhaust all legal remedies open to him to establish such will as the true one. In the opinion it was said:

"It is made the duty of the executor to execute the will of the testator, and it is also incumbent upon him to present the will to the county court of the testator's residence for probate; and while he can not act as executor until his qualification as such, it is difficult to...