Smith's Administrator v. Price
| Decision Date | 16 February 1934 |
| Citation | 252 Ky. 806 |
| Parties | Smith's Administrator et al. v. Price et al. |
| Court | United States State Supreme Court — District of Kentucky |
2. Husband and Wife. — Oral contract whereby each spouse released all interest in the other's personal property on the other's death, and both agreed that each might bequeath own estate to own people, need not have been in writing to be valid (Ky. Stats. 2132).
3. Husband and Wife. — Executor of deceased husband held not entitled to one-half of surplus personalty left by wife who predeceased husband, where wife bequeathed all her personalty to her relatives pursuant to oral contract whereby each spouse released all interest in the other's personalty on the other's death, and both agreed that each might bequeath own estate to own people (Ky. Stats., secs. 2128, 2132).
Appeal from Green Circuit Court.
J.H. GRAHAM and VERNON SHUFFETT for appellants.
MILBY & HENDERSON for appellees.
Reversing.
Sallie F. Smith died on August 29, 1931, and this action was brought by D.R. Dewitt, as administrator with the will annexed, for the settlement of the estate. Her husband, D.L. Smith, died on September 19, 1931, and W.B. Smith, as his executor, filed his answer, asserting a claim to one-half of the surplus of the estate of Sallie F. Smith. As a defense to this claim, the plaintiff pleaded these facts:
On August 9, 1928, D.L. Smith and his wife, Sallie F. Smith, entered into a verbal contract by the terms of which it was agreed between them that each would make a will and dispose of their property as they desired to do, that he would not will his wife any of his property, and she would not will her husband any of her property, but that each of them would will their respective property to their own people, and that they each would stand by said will. At the time of making this contract, D.L. Smith was eighty-seven years old, and his wife was younger. Neither of them owned any real estate. D. L. Smith was at the time owner of personal estate of the value of $4,500. Sallie F. Smith was the owner of personal estate of the value of $3,000; they had no children, but he had several children by a former marriage. In pursuance of the verbal contract with his wife, he willed all his property to his children and his grand-children; she, in pursuance to the verbal contract with her husband, willed all her property to her brothers and sisters. These wills were made pursuant to the verbal contract. He did not will his wife any of his property; she did not will her husband any of her property. Each of the wills was written on the same day, to wit, August 9, 1928, at the same place and by the same person, and were witnessed by the same witnesses. They were both duly probated later. The husband at no time elected to assert his rights under the statute to any part of the wife's estate, or make any claim to it. The court sustained the demurrer of the husband's executor to the reply, pleading the above facts, and entered judgment in favor of the husband's executor for one-half of the wife's estate. The plaintiff appeals.
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