White v. Brennan's Adm'r

• Court: Kentucky Court of Appeals
• Writing for the Court: LATIMER, Justice.
• Citation: White v. Brennan's Adm'r, 307 Ky. 776, 212 S.W.2d 299 (Ky. Ct. App. 1948)
• Decision Date: 18 June 1948
• Parties: WHITE et al. v. BRENNAN'S ADM'R et al.

212 S.W.2d 299

307 Ky. 776

WHITE et al. v. BRENNAN'S ADM'R et al.

Court of Appeals of Kentucky

June 18, 1948

Appeal from Circuit Court, Campbell County; Ray L. Murphy, Judge.

Proceeding by Edward Sheehan, as administrator of estate of Julia K Brennan, deceased, and others against Arthur W. White and others to establish and probate alleged lost will of Julia K Brennan, deceased. From judgment of circuit court upholding action of county court in favor of plaintiffs, the defendants appeal.

Affirmed.

Benton Benton, & Luedeke, of Newport, John A. Scanlon, of Cincinnati, Ohio, and John Wm. Heuver and William J. Wise both of Newport, for appellants.

Barbour & Bassman, of Newport, Ky. and Martin J. Brown, of Covington, for appellees.

LATIMER Justice.

This is an action on a lost will.

Julia K. Brennan died testate, a resident of Fort Thomas, Kentucky, on October 30, 1945. After her death a diligent an extended search was made to discover a will which was believed to exist. The search proved futile. Thereafter, Edward Sheehan was appointed and duly qualified as the administrator of her estate. Later, information reached the administrator that Anthony Dunlap, an attorney of Cincinnati, had written a will for Mrs. Brennan. Dunlap, who was immediately thereafter contacted, informed the administrator that he had written a will for Mrs. Brennan in 1931 and produced a paper purporting to be a carbon copy of the will. He stated that pursuant to Mrs. Brennan's directions he mailed the will to George Kaufman, County Clerk of Kenton County, who was named executor in the will and also with his wife the chief beneficiaries under the will. Diligent search for the will in the Clerk's Office and also among the personal effects of George Kaufman, who predeceased Mrs. Brennan by about 8 years, was also futile. The carbon copy was then admitted to probate by the County Court as the last will and testament of Julia K. Brennan and the Circuit Court of Campbell County upheld the action of the County Court. This appeal is from that decision.

In Caudill v. Loar, 293 Ky. 223, 168 S.W.2d 757, we find a full and complete treatise on the requisites for probating a lost will. Therein we held, as we have held in numerous other cases, that four things must be shown in order to sustain the probate of a lost will. Proponents must show: (1) Due execution of the alleged will, (2) Its loss or misplacement, (3) Its contents, and (4) Continued recognition of the will by the testator or other acts on his part showing its non-revocation. The correctness, then, of the lower court's decision hinges on whether or not the above requisites for probating the carbon copy as the last will of Julia K. Brennan have been met by the proponents.

We then shall first look at the evidence to determine whether or not the will was executed. Anthony Dunlap, a reputable lawyer, and one time Chairman of the Board of Bar Examiners, Ohio, testified in substance that he had known Mrs. Brennan for a number of years; that she had on numerous occasions been in his home; that he had prepared a will in 1915 for her when her name was Mrs. Julia Eckle; that he wrote a will for Mrs. Brennan in 1931; that he made a carbon copy of the will; that the will was duly signed by at least two witnesses; and that he thought he was one of the witnesses but would not say positively that he was. He stated that pursuant to directions of the testatrix he mailed the will to George Kaufman, apparently because Kaufman was named executor in the will, and further because Kaufman's wife was the chief beneficiary of the will. He placed in the record as exhibits pencil memoranda taken at the time he prepared the will, also a carbon copy of a letter which he wrote to George Kaufman and mailed to him with the will.

In addition to Mr. Dunlap's testimony there was also testimony of other witnesses who stated that Mrs. Brennan had said that Mr. Dunlap had written her will for her. Cecelia White, who did housework for Mrs. Brennan, and one of the chief witnesses for the opponents of the will, testified that Mrs. Brennan told her she made a will in 1931, and that Mr. Anthony Dunlap drew the will.

In Baker v. Dobyns, etc., 34 Ky. 220, it was held that no specific number of witnesses is necessary to sustain a lost holographic will since the will need not have been witnessed and one person's testimony would suffice to sustain it.

Appellants contend that the execution of a lost will must be proven the same as the execution of a will that is not lost, and cite in support thereof Bradshaw v. Butler, &c., 125 Ky. 162, 100 S.W. 837. We agree with the above but the question arising here relates to the manner and the kind and quantum of proof required in cases such as this. We yet agree with all that was said in Tackett v. Tackett, 204 Ky. 831, 265 S.W. 336, 337, 338, relative to producing the testimony of subscribing witnesses, but it will be noted therein this exception: 'Where such witness exists and is known to reside within the jurisdiction of the court.' Mr. Dunlap stated that he could not recall the names of the witnesses. He thought he was one but he would not say positively he was. However, he did say definitely and positively that there were at least two subscribing witnesses; that testatrix signed the will in their presence; and that as subscribing witnesses they signed in the presence of the testatrix and in the presence of each other.

Appellees maintain that it is not necessary that due execution of a lost will be proven by the subscribing witness or witnesses. It is argued further by appellees that the fact of subscription and attestation may be proven by one of the subscribing witnesses or by others even against the testimony of one or both of the subscribing witnesses. Appellees then argue that if due execution may be established even against the testimony of subscribing witnesses (Caddell's Heirs v. Caddell's Ex'r, 175 Ky. 505, 194 S.W. 541; Griffith's Ex'r v. Griffith, 44 Ky. 511; and Montgomery v. Perkins, 59 Ky. 448, 74 Am.Dec. 419), there can be no doubt that it may be established in the absence of their testimony when that absence is properly accounted for. Were this not the case the probate of every will would depend on the longevity of the subscribing witness.

In Tudor v. Tudor, 56 Ky. 383, we said:

'The statute requires that a will, to be valid, if not wholly written by the testator himself, shall be signed by him and be attested by two or more competent witnesses, subscribing their names in his presence. It does not, however, prescribe the manner in which these facts are to be proved; that is determined by the rules of evidence.' See also Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5.

The case of Tackett v. Tackett, supra, relied on heavily by appellants, holding that a will may not be probated without the evidence of one or more attesting witnesses, if they be living and within the jurisdiction of the court, has no application here. In that case a subscribing witness, although within the jurisdiction of the court, under somewhat suspicious circumstances did not testify because she was allegedly sick. Here, we have the scrivener, a lawyer of considerable repute, who testified that the will was duly executed in accordance with the laws of Kentucky, and that he did not remember whether there were two or three witnesses, but he was certain there were at least two. We think appellees met the test of sufficiency of proof to establish the execution of the will.

This leads us to the second requisite, that is, the proof of loss of the will. In support of their position that there is a failure to show loss of the will, appellants rely strongly on the case of Minor v. Guthrie, 4 S.W 179, 180, 9 Ky. Law Rep. 113. A careful examination of this case, however, shows that it does not support their contention. It apparently goes no further than to hold that...