Security Trust Co. v. Swope, Judge

• Decision Date: 10 June 1938
• Citation: 274 Ky. 99
• Parties: Security Trust Co. et al. v. Swope, Judge.
• Court: United States State Supreme Court — District of Kentucky

274 Ky. 99

Security Trust Co. et al. v. Swope, Judge.

Court of Appeals of Kentucky. In Court of Appeals.

Decided June 10, 1938.

1. Wills. — Probate proceedings are in the nature of in rem actions.

2. Wills. — A will can be probated ex parte or in the common form, or it can be probated inter partes or in the solemn form.

3. Wills. — A judgment of a probate court is conclusive against the world, whether the mode of probate is ex parte or inter partes.

4. Wills. — Under statutes, any one entitled to inherit from testator can appeal in his own name within five years from the probate

of the will when dissatisfied with the provisions thereof, whether the will has been probated by the common or ex parte form of procedure or by the formal inter partes procedure, and when the appeal is taken to the circuit court all necessary parties must be brought before the court (Ky. Stats., secs. 4850, 4857, 4860, 4861).

5. Wills. — The words "all necessary parties," in statute requiring that all necessary parties be brought before circuit court into which an appeal from a probate judgment is taken, meant parties in whose favor the probate court adjudged, and not parties against whom the judgment was rendered, and who were interested in having the judgment vacated and set aside (Ky. Stats., sec. 4859).

6. Wills. — The circuit court to which an appeal was taken by one of testatrix' collateral heirs from a judgment in the probate court sustaining a will properly overruled executor's motion to require collateral heir to make all of the other collateral heirs parties to the appeal, where every one who was interested in sustaining the will was made a party to the appeal (Ky. Stats., sec. 4859).

7. Wills. — A circuit court judge hearing appeal by one of testatrix' collateral heirs from judgment in probate court sustaining will properly permitted collateral heir to prosecute the appeal for himself and all other collateral heirs similarly situated (Civil Code of Practice, sec. 25; Ky. Stats., secs. 4850, 4857, 4859, 4860, 4861).

FIELD, McLEOD and HUNT, BUSH & LISLE and McDONALD & McDONALD for petitioners.

FRANK S. GINOCCHIO for respondent W.M. Railey.

OPINION BY JUDGE THOMAS.

Dismissing petition.

This is an original action filed in this Court under the provisions of section 110 of our Constitution, in which the Security Trust Company, as executor of the will of Margaret Helm, deceased, and Rector, Wardens and Vestry of Christ Church in the city of Lexington, are petitioners and Hon. King Swope, Judge of the 22nd Judicial District of Kentucky, composed of Fayette County, is the respondent. In their initial pleading petitioners set out the facts that Margaret Helm died testate in August, 1936, a resident of Fayette county, unmarried and without issue; that she named petitioner, Security Trust Company, as executor of her will, and that at the time of her death her father and mother were both dead; that she left surviving her no brother or sister, nor descendants of either, and, of course, she left no surviving grandfather or grandmother on either her paternal or maternal side. Therefore, all of her next of kin were collateral heirs descended from relatives of the ascending line; that in her will she provided for the payment of debts and the erection of a monument at her grave, and then devised all of the remainder of her property, amounting to about $350,000, to the other petitioner, Rector, Wardens and Vestry of the Christ Church of Lexington, Kentucky; that the will was duly probated in the Fayette County Court in an ex parte application on August 14, 1936, and that on June 21, 1937, one William Mayo Railey, alleging himself to be one of the collateral heirs of the testatrix, attempted to prosecute — solely in his name — an appeal from the probate judgment to the Fayette circuit court, presided over by respondent; that in the statement filed in the appellate (Fayette circuit) court he alleged the facts as above outlined and the fact of his relationship to the testatrix and his heirship to her, and also stated that the probated paper in the county court was not the last will and testament of testatrix, and that he prayed an appeal from the judgment of the county court probating the will.

The executor named therein, and the sole devisee were each summoned to answer the appeal of Railey. Only the executor answered and its pleading was in the nature of one in abatement of the appeal because of defective parties, which it manifested in the pleading it filed, by setting out the names (with no residences or addresses) of many persons whom it averred are descendants of ascending collateral heirs of testatrix, and which it alleged are all of the persons known by it who occupy such relationship to her, but intimating that there are possibly others — all of whom it insisted should be made parties to the appeal — with those who were residents of the state of Kentucky actually summoned, and warning orders obtained for the non-residents. It later filed a supplemental pleading increasing the list to 172, and giving the post office addresses of each alleged heir, the great majority of whom were non-residents of this commonwealth. It, however, qualified its averments by saying that it "does not know whether or not such persons are living, or if living, who are the descendants or heirs at law of such persons." There was included in its list of such collateral kindred the appellant in the appeal to the Fayette circuit court Wm. Railey, who, it averred, resided in the city of New Orleans, Louisiana.

Upon the facts contained in its pleadings the executor made in the Fayette circuit court these motions — (1) to require Railey to bring before the court all of the persons named in its pleadings; (2) to require him to execute a non-resident's bond for costs, and (3) to require him to state his degree of relationship to the testatrix. Whereupon Railey filed a motion requesting the court to permit him to prosecute the appeal contesting the will of testatrix for and on behalf of himself and all of the other heirs of the testatrix. The motions by both sides were then submitted and the court sustained the one requiring the appellant, Railey, to execute bond, but it overruled the one made by the executor to require appellant to show his degree of relationship to the testatrix, and also the one to require him to bring before the court the collateral heirs of the testatrix as set out in the pleadings of the executor.

The case then stood for trial at the regular May term of the Fayette circuit court but before it arrived petitioners filed this original action in this court to prohibit respondent, as judge of the Fayette circuit court, from proceeding with the trial of the appeal in the condition of the pleadings and issues as they were left after such motions were acted on, and to mandatorily direct and require him to rescind his orders overruling the motions of the executor and to sustain them as made, and also to rescind its order permitting Railey to prosecute the appeal for the use and benefit of himself and all others similarly situated as collateral heirs of the testatrix, which latter ruling, it is averred in the petition, was made by the court without jurisdiction, since it was also averred that by section 470 of our Civil Code of Practice, sections 4849 and 4866, both inclusive, are made parts of the Civil Code of Practice and that section 4859 of the same statutes requires that in an appeal from the county court probating a will "all necessary parties shall be brought before the court by the appellant," and that such requirement supersedes in will contest cases the right of one or more interested parties to prosecute or defend an action for the benefit of all others similarly situated, as is conferred by section 25 of the Civil Code of Practice with reference to other character of actions. Therefore, it is argued that the court exceeded its jurisdiction in sustaining Railey's motion to prosecute his appeal in that manner.

It appears to be conceded in the petition filed in this court that the court had jurisdiction to overrule petitioners' motion to require Railey to make all of the heirs of the testatrix parties to his appeal; but it is averred therein that such ruling was erroneous and that as a consequence thereof petitioners will have no adequate remedy at law, and great and irreparable injury will result therefrom — thus bringing the case by averment within the requisite essentials to the exercise of original jurisdiction in this court under the authority conferred upon it by the invoked section (110) of our Constitution, as declared in...