104 Ky. 680 | Ky. Ct. App. | 1898
delivered the opinion op the court.
B. W. Couchman died August 12, 1887, in Clarke county, Ky. August 22, 1887, at the regular term of the "Clarke County Court, his will, bearing date January 4, 1886, was admitted to probate. By this will the testator devises to his wife, appellee, E. J. Couchman, $3,000 cash, and sufficient to purchase horse, harness and carriage. This to be absolute. He also gave to his wife, during widowhood, his home farm, and the dividends on certain stock in turnpikes. He gave to his niece Amanda, $3,000; to the Bible College at Lexington, $500; also, to the Foreign Christian Missionary Society, $500; also provided for the purchase* of a scholarship in the Midway Orphan School; also, devised t.o his brothers and sisters, $100. He then directs that all the remainder of his estate shall be divided equally, per capita, among his nephews and nieces; and, to the end that an equal division may be had, he directs his executors to sell and convey his real estate, except the home
This record is very voluminous, and contains numerous exceptions to tbe admission and exclusion of testimony, and exceptions to tbe giving and refusing instructions to tbe jury, and other errors of tbe trial court. Among tbe questions raised by counsel, and urged, is tbe contention by appellants that tbe judgment of tbe County Court admitting to probate tbe original will of B. W. Couchman was a bar to tbe subsequent proceeding to probate tbe codicil in tbe County Court, and that, subject to review in a trial de novo on an appeal from it to tbe Circuit Court, it was absolutely conclusive. On behalf of appellees it is contended that tbe codicil being merely an appendage to tbe will, and its probate depending on tbe probate of tbe will itself, tbe order and judgment of probate of tbe will were not final and conclusive as to tbe codicil; in other words, that the jurisdiction of tbe County Court as to probate was not exhausted till tbe whole will was probated, and that this includes all codicils. Tbe County Court and tbe Circuit Court necessarily took the appellees’ view of the law on this question.
This question has never been passed on by this court, and is one of first impression. Counsel for appellees have cited, as tending to support their position, the case of Reed’s Will, 2 B. Mon., 79, where Chief Justice Robertson uses this language: “A codicil, dated in 1840, and providing for the transportation of tbe emancipated persons to Liberia, or tbe sale of them in the event of their refusal to
Counsel for appellants has referred us to the case of Hardy v. Hardy’s Heirs (decided by-the Supreme Court of Alabama), 26 Ala., 524, which reads: “The act of 1806 provides, that, when any will has been admitted to probate, it may be contested by any person interested, by bill in chancery, within five years thereafter, and that unless so contested it shall be conclusive and binding upon all parties; extending, however, to infants, married women, lunatics, and persons absent from the State, the right of contestation to five years after the removal of their respective disabilities. Under this statute' the probate is conclusive, unless the will is contested in the mode and
We are of opinion, from a careful review of these authorities, that the, judgment probating a will in the County Court is final and conclusive, except it be vacated, reversed or annulled by some one of the modes provided by the statute. The first mode is by appeal to the Circuit Court within five years, and thence to this court within one year. This remedy is exclusive of all others while it may be invoked. The second is by a court of equity to impeach the judgment of the Circuit Court, as provided in sections 35, 37, c. 113, Gen. Stat. This right of appeal to the Circuit Court is a matter of right to any person interested, and the trial had in the Circuit Court is a trial do novo, without regard to any evidence heard or offered in the County Court. Neither of the statutory remedies provided for was attempted to be used in this case; but the ajipellees asked the county court, two years after the original will was probated, to admit to probate the codicil, and it is contended that the County Court had jurisdiction to probate this codicil as an appendage to the original will. To this -we do not assent. While codicils can only be probated as appendages to the original wills, and may, where not in any way inconsistent with the original will, be probated by the County Court at a subsequent term from the probation of the original will, yet in this case the codicil propounded is entirely inconsistent with the original will.