Rogers v. Leahy

• Decision Date: 30 November 1943
• Citation: 176 S.W.2d 93,296 Ky. 44
• Parties: ROGERS v. LEAHY et al.
• Court: Kentucky Court of Appeals

176 S.W.2d 93

296 Ky. 44

ROGERS v. LEAHY et al.

Court of Appeals of Kentucky

November 30, 1943

Appeal from Circuit Court, Muhlenberg County; Clarence Bartlett Judge.

Suit by J. L. Rogers, trustee, against Eula D. Leahy, widow of Thomas L. Leahy, deceased, and others, for specific performance of a contract. Decree for defendants, and plaintiff appeals.

Affirmed.

Newton Belcher, of Greenville, for appellant.

T. O Jones, of Greenville, for appellees.

VAN SANT, Commissioner.

On November 28, 1940 Thomas L. Leahy and wife, Eula D. Leahy executed a contract by which they agreed to sell to the appellant, J. L. Rogers, trustee, the minerals in and under certain tracts of land in Muhlenberg County upon payment of a stipulated sum. Before the contract was performed Thomas L Eahy died. An instrument of writing purporting to be his last will was probated as such by the County Court of Muhlenberg County, of which he was a resident at the time of his decease. The purported will was typewritten, and signed by the testator, but was attested by one subscribing witness only. By the terms of the writing Mr. Leahy attempted to devise to his widow all of his real estate. In pursuance of the contract of sale, the widow tendered to appellant a deed executed and acknowledged by her as devisee under the will. Conceiving that the will was not in sufficient form to be admitted for probate, appellant refused to accept the deed. Whereupon Mrs. Leahy caused to be executed and acknowledged by Mr. Leahy's other heirs at law an instrument of writing, wherein the heirs agreed that the order probating the will might stand, and the will be given full force and effect, and that they would not contest its probate or appeal from the order of probate. This instrument was recorded in the Muhlenberg County Court, and Mrs. Leahy again tendered her deed for the property. Appellant again refused to accept the deed, questioning the title to the property purported to be conveyed thereby. He thereupon filed this action against Mrs. Leahy and Mr. Leahy's heirs and their spouses, asking the court to require the defendants to perform specifically the contract entered into by their ancestor and Mrs. Leahy. Many of the heirs were before the court on constructive process. The Chancellor entered judgment pronouncing the deed tendered by Mrs. Leahy to be valid and to convey good title to the property, thus giving full force and effect to the order probating the will and the instrument executed by the heirs by which they agreed that they would not contest the will or appeal from the order probating it. The judgment further directed the Master Commissioner of the court to execute a deed on behalf of the heirs and the appellee, Eula D. Leahy, conveying the property to the appellant. From that decree this appeal has been prosecuted. It is claimed that the court erred in adjudging title to the property to be in Mrs. Leahy and that the deed executed and acknowledged by her alone conveyed good title.

It is first contended that, since the will was typewritten, and contained the signature of only one subscribing witness, it was not a will and therefore not the subject of probate, and that both the purported will and the order probating it are void. That, if wrong in that contention, since the order of probate can be appealed from by interested parties within five years after its entry, the title purported to be conveyed by the deed tendered is not presently good, because it is subject to defeat should one of the interested parties decide to appeal from the order of probate. In this connection it is pointed out that the husbands of four of the heirs did not sign the writing waiving their right to appeal from the order of probate; and, because of their inchoate right of curtesy in the property, they are parties of interest, entitling them to contest the will, which they may do within the five year period of limitation; and since that time has not expired, the deed executed by Mrs. Leahy alone does not pass good title to the property.

KRS 394.130 recites: 'No will shall be received in evidence until it has been allowed and admitted to record by a county court; and its probate before such court shall be conclusive except as to the jurisdiction of the court,...