Randolph v. Lampkin

• Decision Date: 18 October 1890
• Citation: 14 S.W. 538,90 Ky. 551
• Parties: RANDOLPH et al. v. LAMPKIN et al.
• Court: Kentucky Court of Appeals

14 S.W. 538

90 Ky. 551

RANDOLPH et al. v. LAMPKIN et al.

Court of Appeals of Kentucky.

October 18, 1890

Appeal from circuit court, Woodford county.

"To be officially reported."

Ed. M Wallace and C.J. Bronston, for appellants.

D. L Thornton, O'Neal, Jackson & Phelps, and Samuel B. Kirby for appellees.

LEWIS J.

Lewis W. Lampkin, Sr., died March 27, 1882, about 86 years old leaving a paper purporting to be his last will, by which was devised to Catherine M. Gordon and her children all his real and personal estate except 30 acres of land, given to Lewis Washington, and 1 1/2 acres to Jefferson Blackwell; and this is an appeal by the first-mentioned devisees and propounders from a judgment rendered in pursuance of a verdict of the jury finding, in substance, the paper in question to be his last will so far as it makes provision for Lewis Washington and Jefferson Blackwell, and not his last will so far as it makes provision for Catherine M. Gordon and her children. As under section 35, c. 113, Gen. St., the proper issue for the jury in a will contest is "whether or how much of any testamentary paper produced is or is not the last will of a testator," it was competent for the jury to find the verdict rendered; and, although the devisees Washington and Blackwell, as well as the contestants, are before this court as appellees, still, as there was not in the lower court, nor, by reason of the relative attitude they occupy, can be, any real contest between them and appellants, the judgment must, in the absence of a cross-appeal, be treated, as to them, final and conclusive.

In order to determine the questions made in behalf of appellants, it is necessary to refer in some measure to the family history of the testator, and the manner in which he became owner of the estate devised. It appears that, about the year 1811, James Lampkin died, leaving a will by which he devised his estate to his children, 11 in number, his land being divided and given to his sons. Two of the sons, Presley T. and Lewis W. Lampkin, whose will is in contest, became partners, and jointly occupied and used the land devised by their father, and other tracts purchased, until 1834, when the former died, leaving three children. By his will, the control and management of his estate, and custody of his children, was given to Lewis W. Lampkin, who was made executor. Two of the children, however, died in infancy leaving Lewis W. Lampkin, Jr., sole devisee, who resided with his uncle until, and for some time after, his marriage; but, in the year 1851, he separated from his wife, and made a voluntary conveyance of his estate to his uncle, for the purpose, it seems, of defeating his wife's claim to alimony, from whom he was divorced. About 1858, having again married, he instituted suit against his uncle to recover back the estate he had conveyed, which was settled by payment of a large sum to him. He afterwards brought another action to recover more on that account, which was compromised by the payment of another large sum to him; and soon after he went away, and, so far as this record shows, was never thereafter seen or heard from by his uncle, the testator. Lewis W. Lampkin, Jr. had by his first one and by his second wife two children, on whose motion appeal in this case from the county to the circuit court was taken; and one of the reasons for reversal now urged is an order permitting them to contest the probate of the will for the other heirs at law of the testator. It seems to us section 25 of the Civil Code is peculiarly applicable in a case like this, for, while the testator is shown by the record to have had 10 brothers and sisters, the number and names of their children do not appear, and consequently here is clearly a case contemplated by that section,...