Rogers v. Bigstaff's Executor
| Decision Date | 19 June 1917 |
| Citation | 176 Ky. 413 |
| Court | Kentucky Court of Appeals |
| Parties | Rogers, et al. v. Biggstaff's Executor, et al. |
Appeal from Montgomery Circuit Court.
JOHN A. JUDY for appellants.
W. B. WHITE and E. C. O'REAR for appellees.
Mary E. Bigstaff died testate on January 5, 1917, a resident of Montgomery county. Her will was duly probated in the county court of that county on the 9th day of January, 1917. She left a large estate valued at $250,000, or more, and by the eighth clause of her will she disposed of the residuum of her estate, after providing for debts and making specific devises, to her children and grandchildren, but giving to her children only a life estate with remainder to her named grandchildren, except to her grandchild, Mary Ragan Gay, she devised a present interest, but to all who received a present interest their share in remainder went to the grandchildren, and at their death to their children, if any living at that time, but if not, to her other grandchildren per stirpes.
In the same clause she directed her executor to convert her personal property into cash and to invest it in real estate in Kentucky, taking title thereto to the persons and in the manner indicated in her will.
After the executor qualified, which he did upon probate of the will, he entered into a contract agreeing to purchase 824 acres of land in Bath county, Kentucky, in compliance with the directions of the will. That contract of purchase was made with Thomas J. Bigstaff, Fenton B. Hill, Lizzie B. Ragan and O. Sam Bigstaff, adult children of the testatrix, and who were the owners of the tract of land proposed to be purchased. They held title to it under the will of Thomas T. Jones, their grandfather, and the father of Mrs. Bigstaff, the testatrix, which will was probated, or attempted to be probated, by the Bath county court on June 9, 1862.
By the third clause of Thomas T. Jones' will he devised the 824-acre tract of land to Mary E. Jones (Bigstaff) for and during her natural life, and at her death to her children.
After the agreement to purchase the tract of land in Bath county had been made by Mrs. Bigstaff's executor, he discovered that there was no judgment to be found in the records of the Bath county court ordering and directing the will of Thomas T. Jones to be probated. He thereupon instituted proceedings in that court for the purpose of having it enter an order nunc pro tunc directing the probate of the will of Thomas T. Jones. Due and proper notice was served upon all of the heirs of Thomas T. Jones, and on the devisees of Mrs. Bigstaff, of the day when such motion would be made, which was May 23, 1917. After a full hearing of that motion, the court entered an order nunc pro tunc, as prayed for. After this was done the executor and the adult heirs and devisees of Mrs. Bigstaff filed this suit in the Montgomery circuit court against her infant devisees and heirs, setting up in greater detail the facts which we have related, and filed with their pleading a complete record of the proceeding had in the Bath county court whereby the nunc pro tunc order was obtained, and sought the judgment of the court upon the legality of the title to the 824-acre tract of land in which the executor proposed to make the investment as directed by Mrs. Bigstaff's will. After taking of testimony showing the value of the land, the propriety of the investment, and the proceedings had in the Bath county court with reference to the probating of the will of Thomas T. Jones, including the record made in the motion for the nunc pro tunc order, the case was submitted, and the court adjudged that the title to the 824-acre tract of land was complete, that the investment would be an appropriate one, and ordered and directed the executor to make it, and from that judgment the infants by their guardian ad litem prosecute this appeal.
There is no question made but that the price agreed to be paid for the land is reasonable, and that the quality of the land is most desirable. The only question presented is whether the condition of the record exhibits a legal establishment of the will of Thomas T. Jones.
That will is recorded upon the record books of the Bath county court, and immediately following it is this certificate:
Mrs. Bigstaff also had a copy of the will in her possession at the time of her death, with the same certificate upon it. Besides, it is conclusively shown that the orders of the Bath county court from April, 1862, to November of that year, both inclusive, were written in what was known as the minute book kept by that court, and that the minute book for that time is permanently lost.
The argument of counsel for appellees is that the nunc pro tunc order directing the probate of the will of Thomas T. Jones as of the date it was made is legal, and supplies the omission of the records of the Bath county court to show that the order was made at the time, and further that if this were not so that the due and regular probate of Jones' will would now be presumed after the lapse of nearly 55 years, especially when coupled with the fact that his heirs and devisees named in the will itself have acquiesced for that length of time in its terms and provisions.
The latter contention is denied by the guardian ad litem, and he attempts to meet the former one, as we understand his position, by insisting that the nunc pro tunc proceedings were so far removed from the time the Jones will was probated, if at all, that it is barred by limitations. But upon this point we are cited to no statute or authority except the cases of Allen v. Froman, 96 Ky. 313, and Reed's Admr. v. Benge, 112 Ky. 810, in which it is held that a proceeding for the original probate of a will is barred after the lapse of ten years from the time the right to probate it accrued. The law as...
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Bailey v. Rennert, Jr.
...the modified order was actually rendered on the former day, but by oversight was not entered on the record as rendered. Rogers v. Bigstaff's Executor, 176 Ky. 413; Lancaster Electric Light Company v. 168 Ky. 179; Benton v. King, 199 Ky. 307; Mullins v. Miller Brothers Co., idem 139, and Cha......
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Seitz' Ex'r v. Seitz
... ... by Mary Ellen Seitz and others to remove Henry E. J. Seitz, ... as executor of the will of Charles W. Seitz, Sr. The motion ... was granted, but was subsequently set aside, ... or even at a later term to enter such an order of record nunc ... pro tunc. See Rogers v. Biggstaff's Ex'r, ... 176 Ky. 413, 195 S.W. 777; Benton v. King, 199 Ky ... 307, 250 S.W ... ...
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...and vested rights of innocent persons will not be injuriously affected, an order nunc pro tunc may be entered. Rogers v. Biggstaff's Ex'r, 176 Ky. 413, 195 S.W. 777; Benton v. King, 199 Ky. 307, 250 S.W. 1002. In exercising this power the court is only its own omission or mistake or that of......