206 S.W.2d 199 | Ky. Ct. App. | 1947
Affirming.
This action was instituted in March, 1946, by the appellant, Carrie Gilliam, to have probated in the Knox Circuit Court an alleged will of her husband, Thomas G. Gilliam, who died in 1940. The will offered for probate directed that all of Mr. Gilliam's property go to his wife after the payment of his debts, and she was named as executrix. After demurrers filed by the appellees, defendants below, were overruled, they filed a plea of estoppel, which was based on the ground that Mrs. Gilliam had filed an action in 1941 to settle her husband's estate, wherein she alleged that he died intestate. After controverting the pleading of the appellees Mrs. Gilliam set forth in an amended petition that she and her husband entered into a mutual agreement and undertaking in 1937 under which each would execute to the other a will to their interest in jointly owned property. The amended petition set forth also that the wills were prepared by the same draftsman and witnessed by the same witnesses. It was further set forth that Mrs. Gilliam's will had disappeared, and if it was canceled or changed it was done in violation of the alleged mutual agreement and without the appellant's *103 knowledge. A demurrer was sustained to the amended petition. Juries in both Knox County and the Knox Circuit Court returned verdicts against Mrs. Gilliam; hence this appeal.
Mrs. Gilliam is now contending that the court erred in sustaining the demurrer to the amended petition. On the other hand, the appellees insist their plea of estoppel was good and that the court properly sustained a demurrer to the amended petition. Since we are of the opinion that the plea of estoppel was good, we shall confine our consideration of the case principally to that question.
We have noted that Mrs. Gilliam as executrix filed a suit in 1941 to settle Mr. Gilliam's estate. In her petition in that action she alleged that her husband died intestate. Mrs. Gilliam appealed that case to this Court. Gilliam v. Gilliam,
Reference to the recent case of Watkins v. Covington Trust
Banking Co.,
For the reasons given we think the judgment should be and it is affirmed.