Richie, County Judge v. Peiper's ex'X.
| Decision Date | 23 April 1896 |
| Citation | 99 Ky. 194 |
| Parties | Richie, County Judge v. Peiper's Ex'x. |
| Court | Kentucky Court of Appeals |
APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.
CHAS. M. LINDSAY FOR APPELLANT.
CHAS. G. RICHIE ON SAME SIDE.
ALFRED SELLIGMAN FOR APPELLEE.
JUDGE LANDES DELIVERED THE OPINION OF THE COURT.
The questions presented on this appeal are, first, what is a regular term of the Jefferson County Court? second, what constitutes the first day of such a term? and, third, has the county court the power to probate wills on any day other than the first day of a regular term? These questions were raised in a friendly proceeding in the law and equity division of the Jefferson Circuit Court in the name of the appellee against the appellant, Charles G. Richie, judge of the Jefferson County Court, in which it was sought by the judgment of the lower court to compel and require the appellant by the proper writ to proceed and to determine the matter of the probate of the last will of William Peiper, deceased, late of said county, which had been propounded by the appellee in said court on Tuesday, the 7th day of April, 1896, but which the court, although sitting, declined to admit to probate on that day, notwithstanding the fact that the appellee was present in court and had her witness present to establish the will. The court convened regularly on Monday, the 6th day of April, 1896, the appellant, who was the regular judge of the court, sitting as such, and at the close of the business on that day, by an order duly and regularly made, the holding of the court was adjourned until the next day, when the court again convened and was opened for business pursuant to the order of adjournment. It was on that day, while the court was open for business, the appellant sitting as the regular judge, that the will was offered for probate by the appellee.
It appears that the paper offered for probate as the last will of William Peiper, deceased, had been signed and published by him in the presence of Otto C. Minor and Henry Wolks, subscribing witnesses thereto, and that when the paper was offered for probate as stated, on Tuesday, April 7, 1896, Minor was present and was sworn as a witness, and testified as to the execution of the will, and also proved the attestation of Henry Wolks, the other subscribing witness; nevertheless the court refused either to probate or reject the paper, and refused to enter any order in the matter because the paper was not produced and propounded on Monday, the 6th day of the month. These facts were all properly set up in detail in the petition, to which the appellee filed a general demurrer, and which the court overruled, and thereupon a judgment was entered in substance ordering the appellant to proceed in the matter of the probate of the will in question, and to hear evidence for and against it and to hear and determine the question whether or not the paper offered as such was or was not the last will of William Peiper, deceased. From that judgment this appeal is prosecuted.
By an act of the General Assembly, approved February 25, 1854, entitled "An act to establish a levy and county court for Jefferson county" (2 Stanton's Revised Statutes, edition 1860, 523), it was provided (section 4) that a county court for said county should be held "on the first Monday in every second month in the year, beginning with the first Monday in April, 1854."
It was also provided (section 10) that the regular terms of said court should begin "on the first Monday in April and every second month thereafter, and end the Saturday next preceding...
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