123 Ky. 271 | Ky. Ct. App. | 1906
Opinion op the Court by
Reversing.
L. M. Paine died a resident of Jefferson county. A paper purporting to be bis last will was probated upon ex-parte proceedings in the county court. It gave the bulk of Ms estate to Ms grandcMldren, givMg only the use of a portion for life to certain of Ms sons, tbe parents of the grandchildren alluded to. These sons were heavily Mdebted. Their creditors sued, and some of them reduced their claims to judgment, execution upon which was levied upon the sons ’ interest in their deceased father’s estate. The children of the decedent failed to prosecute an appeal from the order of the county court probating the will. The creditors of the disinherited sons have filed a statement of appeal in the Jefferson circuit court, setting out their interest in the probate, charging that their debtors are insolvent and refuse to prosecute the appeal, and asking to be allowed to prosecute it. They allege that the paper probated as the will of L. M. Paine was not in fact his will; that he had revoked it before biis death. The question for decision is, can a creditor of an insolvent heir at law contest a will which disinherits or diminishes the interest of such heir in his ancestor’s estate?
It is also contended that a man should be allowed to do as he pleases with his own property, by disposing of it by will to whomsoever he chooses; that he may cut off his insolvent sons, and leave his estate to their children, or even to strangers, if he wishes. Granted. But this proceeding does not question the right of a man to make such will as he pleases. It denies the right of the man’s heirs at law to make for him a will which in law he has not made. It denies the right of the heirs to settle their own property, cast upon them by the laws of descent, upon their children, to the detriment of their creditors, by a proceeding which proposes to have a false document adjudged to be a true one. These general principles we believe to be sound in morals. In construing the statutes to which the practice in question is to be applied, that construction will be preferred, where permissible, that subserves the right, instead of one that would favor a wrong. By statute (section 4849, Ky. St. 1903) the county court of the county of decedent’s residence at his death has original jurisdiction to probate his will. The court may proceed by allowing the document to be proven ex-parte, or may cause all parties in interest in the probate to be brought before the court. Section 4857, Ky. St. 1903. Within five years any person interested in the probate may prosecute an appeal to the circuit court of the county, where the trial is to be anew. Sec. 4859, Ky. St. 1903. Probate proceedings have nothing to do with the construction or enforcement of wills. They merely determine whether there is a lawful will.
The judgment of the circuit court sustaining the special and general demurrers to the statement is reversed, and cause remanded, with directions to overrule the demurrers, and for further proceedings not inconsistent herewith.
Petition for rehearing by appellees overruled.