Pritchard v. Harvey

Citation272 Ky. 58,113 S.W.2d 865
PartiesPRITCHARD et al. v. HARVEY et al.
Decision Date11 February 1938
CourtCourt of Appeals of Kentucky

Appeal from Circuit Court, Owsley County.

Proceedings in the matter of the estate of Robert Pritchard, deceased, on the application of Lucy Harvey and others to probate a certain instrument as the last will of the deceased, opposed by Laura and Elsie Pritchard, which were consolidated on appeal from judgment of the county court dismissing the application to probate the instrument as the last will with proceedings in equity by Lucy Harvey and others under Ky.St § 4861, to establish the alleged lost will of the deceased against Laura and Elsie Pritchard. From a judgment establishing the alleged lost will of the deceased and reversing judgment of the county court and ordering the alleged instrument to be probated as the last will, Laura and Elsie Pritchard appeal.

Reversed with directions.

S. H Rice and Charles L. Seale, both of Booneville, and Richard P. Dietzman, of Louisville, for appellants.

Rose & Stamper, of Beattyville, for appellees.

THOMAS Justice.

Robert Pritchard died on March 24, 1936, at the age of 65 years and a resident of Island City, a village in Owsley county, Ky. For many years he had conducted a retail store in that place and at the time of his death he had accumulated property, both real and personal, the aggregate value of which was, perhaps, between $25,000 and $30,000. He was married four times, the last wife being the appellant, Laura Pritchard, whom he married in 1920. He had no children as a result of either marriage, except a daughter, the appellant Elsie Pritchard, a child by his second wife; but that marriage was dissolved in a divorce proceeding, and the wife, with her infant child, moved to the state of Missouri after the granting of the divorce, where the daughter grew to womanhood and obtained a clerical position with a business firm in the city of St. Louis, her mother dying in 1935.

At the time of Robert Pritchard's death Elsie Pritchard had never seen her stepmother, nor had she ever been in Island City, where her father had been living for the past 18 or more years. However, about 12 years before her father's death, the latter met his daughter in the city of St. Louis, and still later there was a meeting between them in Belleview, Ill. Following those two meetings, with some years intervening, the daughter met her father in the city of Louisville, Ky. pursuant to his written request for her to do so, and they were together some 16 hours during that meeting. Still later the father was confined in a hospital in Louisville with some ailment and at his request his daughter again visited him, and that was the last time she ever saw him alive. Following the time of the meeting in Belleview, Ill., and at the request of the father, a correspondence grew up between the two, but, instead of the daughter's letters to her father being addressed to him at Island City, where he lived and where there was a post office, she addressed them to her aunt (her father's sister and an active appellee herein), Mrs. Lucy Harvey, who lived near Booneville, the county seat of Owsley county, and in the envelop so addressed to Mrs. Harvey there was enclosed the one written by the daughter to her father and which the aunt would deliver to him. Likewise, following a peculiar notion of the father, he would procure Mrs. Harvey, his sister, to mail the letters he wrote to his daughter from the Booneville post office instead of Island City.

In November, 1935, preceding the death of Robert Pritchard, which occurred in March, 1936, he wrote a letter to his daughter, the original of which became lost, but the contents were proven, in which he told her that he intended visiting her in the following December and said that he had some matters and things that he wished to talk over with her, but in a later letter he stated that he was unable to make the contemplated December visit and postponed it to a future indefinite time. He also told her in one of those letters that he had accumulated enough property to take care of himself and her the rest of their lives, and that he wanted her to come down and assist him in carrying on his business, and that when they met he would talk over matters with her in more detail. He, however, grew more feeble and never met her pursuant to his expressed contemplation. However, he did write her a last and final letter on January 2, 1936, 5 weeks before he took to his bed, and 2 months and 22 days before he died, which the daughter preserved, and it, omitting date, address and signature, was and is in these words: "A few lines to you as i got your letter & glad to hear from you. Hope by the time you get this letter you will Bee much better & getten a long Fine. I wanted to come & See you So Bad But I am Just all most Past Gettin a Round any. I havent Felt good for a long Time But was in hopes i could Seen you. But sure could not Get a Round any I can walk in the House & Kinly Get a Round. But i hope to get to Fealin Better I am expecten to See you later & then I'l tell you what i want to tell you. But i am Plannen Just like i told you Some time Back. Say Take the Best of care of your Self & try & get well & all rite a gain. So Keep up Courage & Plan for the Better Later. So you write me & tell Me how you are a long & take the Best of care of your Self. By By."

The only information that the daughter had of the last and fatal illness of her father was a letter written to her by her aunt Lucy Harvey, whose husband is Bent Harvey. In that letter the aunt wrote that Mr. Pritchard could not live but 2 or 3 days and informed his daughter that her father "has lots of stuff and a big store and we want you. You know what I told you here before. She (meaning Pritchard's wife) can only hold a child's part and she or him has no child. Dont tell anyone who you are to cause her to raise a racket with him. We will stand by you," etc. The daughter did not receive that letter in time to prepare for and make the trip until after her father's death, but she did not on that occasion go to his home in Island City--the burial being at a place considerably removed therefrom.

About 10 years before the decedent's death he procured one Frye, a notary public, to write for him a will, the contents of which are not disclosed in this record. However, he placed it in a glass fruit jar and sealed it and delivered it to his sister, Lucy Harvey, who buried it in her husband's stable, on the farm where they resided. It was kept there until some time later, when it was concluded that its encasement in the ground might destroy it, and it was then delivered to the decedent. That is the last occasion that any one living, so far as this record discloses, ever saw it. On October 11, 1935, the decedent went to the office of Rose & Stamper, attorneys in Beattyville, Ky. for the purpose of having them write his will. They did so pursuant to his instructions, and it was executed and witnessed in their office as the law requires--the attorneys preserving in their office safe a carbon copy of it. The original was placed in one of their envelopes with the firm name printed on the upper left-hand corner and the envelope sealed. It was then delivered to Mr. Pritchard, who took it away, and no one but him ever saw it or its contents thereafter, so far as this record discloses.

Following the death of Mr. Pritchard, his widow applied to the county court of Owsley county and moved that she be appointed administratrix of his estate on the theory, of course, that he had left no will; but Mrs. Harvey, and perhaps others of his collateral kindred, possessed some knowledge with reference to the Frye will and objected to the appointment of any one as administrator of the estate until it was thoroughly ascertained that Mr. Pritchard died intestate. Thereupon the county court appointed the sheriff of the county and one of his deputies, together with two other persons, to search his small safe that he kept in his store, the combination of which was known only by Mrs. Harvey. It was made, and no will of any kind was found in the safe, nor anywhere else. In the meantime Mr. Stamper, of the firm of Rose & Stamper, met Mr. Seale, who was the widow's attorney, and informed him of the will of date October 11, 1935, telling him all of the facts surrounding its execution and of the existence of the carbon copy in the office of the attorneys. Thereupon the collateral kindred of the decedent appeared in the county court and moved to probate that carbon copy as the last will and testament of the decedent. Following that, they filed their equity petition in the Owsley circuit court pursuant to the provisions of section 4861 of our Statutes to establish the alleged lost will of the decedent, some of the collateral kindred being nonresidents. The county court, at the hearing of the motion to probate the carbon copy referred to as the will of Mr. Pritchard, overruled it and dismissed the application, from which an appeal was prosecuted by the collateral kindred of the decedent to the Owsley circuit court, and that appeal was consolidated with the equity action, referred to, and the consolidated action was tried by the court as an equity one without the intervention of a jury. It, on final submission, sustained the prayer of the circuit court's equity action and reversed the judgment of the Owsley county court and ordered the carbon copy to be probated as the last will and testament of the deceased. From that judgment the widow and decedent's daughter, who are the appellants, prosecute this appeal.

Both sides agree as to the correct rule of law governing a case like this one. As reiterated by Chief Justice Dietzman in the case of Ferguson v. Billups, 244 ...

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