206 Ky. 724 | Ky. Ct. App. | 1926
Opinion of the Court by
Affirming.
Dr. James H. Harper left Elliott county -with. Ms wife in November, 1921, and went to Florida. .While there on February 15,1922, he made his will. Soon after this he returned with his wife to Elliott county, Kentucky, and died there in April, 1922. On April 29, 1922, his will was admitted to probate by the Lee county court, Florida. On June 6, 1922, a certified copy of the will, accompanied with a certified copy of the proceedings in Florida, was ordered probated in the Elliott county court, pursuant to section 4854, Kentucky Statutes, which is in these words:
‘ ‘ When a will of a nonresident relative to estate within this Commonwealth has been proved without the same, an authenticated copy and the certificate of probate thereof may be offered for probate in this Commonwealth. When such copy is offered the court to which it is offered shall presume, in the absence of evidence to the contrary, that the will was duly executed and admitted to probate as a will of personalty in the state or country of the testator’s domicile, and shall admit such copy to probate as a will of personalty in this Commonwealth. And if it appears from such copy that the will was proved in the foreign court of probate to have been so executed as to be a valid will of lands in this Commonwealth by the law thereof, such copy may be admitted to probate as a will of real estate.”
Three of the heirs at law filed an appeal in the Elliott circuit court from the above order, making the executor and the other heir at law defendants. In the state
The chief ground relied upon for reversal is that the court erred in sustaining the demurrer to the plea in bar and in refusing to give a peremptory instruction at the conclusion of the evidence, on the ground that the judgment of the Elliott county court at its August term was a bar to the appeal.
Section 4854, Kentucky Statutes, above quoted, only applies to the “will of a nonresident.” If Dr. Harper was not a nonresident of Kentucky at his death that section has no application and the county court of Elliott county was without jurisdiction to probate a copy of his will on the record that it had been probated in Florida. If he was a resident of Elliott county the order of the Elliott county court at its April term, 1922, was void. Realizing this the executor, at the August term, 1922, presented the original will of Dr. Harper in the Elliott county court and procured its probate there. This order was valid if Dr. Harper was a resident of Elliott county, but it was invalid if he was not a resident of Elliott county. The purpose of the second judgment was to secure a valid order of probate of the will in either view of his residence.
Properly on the appeal from the order entered in April the only questions presented would be whether Dr. Harper was a resident of Lee county, Florida, and whether the will was shown to be duly probated there.
‘ ‘ The court must, in every stage of an- action, disregard any error or defect in the proceedings, which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”
This is peculiarly applicable to appeals from the inferior courts to the circuit court, which are regulated by sections 724-729 of the Code, for by these sections this class of cases are more liberally treated than cases brought originally in the circuit court. The contestees are in nowise prejudiced by the way the case was tried. They presented their whole case to the jury in chief before the contestants offered any evidence and so invited the contestants to try the whole case in this way. The case having been fairly tried they cannot complain now of that which in nowise prejudiced them.
On the merits there is little trouble. Dr. Harper lived for many years in Elliott county as a practicing physician. Later in life he bought property' in Florida in addition to the property he owned in Elliott county. He and his wife spent their winters in Florida, the rest of the year in Kentucky. They maintained a home in Florida and also maintained a home in Kentucky. In the fall of 1921 the health of both his wife and himself was bad and he was advised to go early to Florida, but
As to his capacity at the time the will was made the proof is so convincing and facts are so clearly established that no complaint is made of the verdict on the appeal and none could well be made. He was suffering from sclerosis or hardening of the arteries and the disease had progressed so far that for some time before he left Kentucky he would not trust himself to practice medicine and according to the great weight of the evidence was in no condition to know his-estate or take a survey of it or to know the objects of his bounty and his obligations to them.
Judgment affirmed.