39 Ky. 25 | Ky. Ct. App. | 1839
delivered the Opinion of the Court.
The question in this case is whether the County Court of Nelson erred in rejecting a paper purporting to be the will of Patrick Kean, deceased, and containing only one devise — that of a tract of land to John Kean.
Among other facts appearing in this Court, John Kean, the devisee, exhibited and proved a deed from the testator to himself, executed after the date and publication of the will, and which conveyed to him the absolute title in fee to the same land.
And that conveyance should, in our opinion, be deemed a revocation of the will, whether it was so intended or not; for — first, if, as we are now bound to presume, the conveyance was valid and subsisting at the testator’s death, he had no interest which could pass by his will, and John Kean would hold the land under the deed, and not under the will; and consequently, the will was inoperative and void. And, second, even if the deed had been cancelled in the testator’s life time, still the fact that he had, after the publication of his will, divested himself of the title to the property devised, was a constructive revocation of the will, which could not, therefore, operate without a subsequent republication. Powell on Devisees, Law Library, vol. 21, pa. 575.
Wherefore, the order of the County Court refusing to admit to record the paper offered for probate as the last will of Patrick Kean, deceased, is approved and affirmed.