125 S.W.2d 992 | Ky. Ct. App. | 1939
Affirming.
If an agreed judgment entered in a proceeding contesting the will of W.A. Williams is void, the judgment appealed in this case must be reversed; otherwise it should be affirmed.
When written in 1912, the principal portion of his will read as follows:
"I will, bequeath and devise to my beloved wife, Mary A. Williams, all of my property, real and personal, to be hers absolutely. It is my desire and I request that if I predecease her, then before her *116 death she make a will giving to her people one-half (1/2) of my property and to my people the other one-half (1/2)."
When offered for probate in the Madison County Court in 1929, each line of the last sentence was marked out in ink and the endorsement added, "The above lines mark out. By W.A. Williams, Nov. 1, 1922." The county court probated the will with this sentence eliminated as having been revoked, so that all the testator's estate was devised to his wife absolutely. About a year later the heirs of W.A. Williams filed in the circuit court a "petition" against the widow, individually, and as executrix of her husband's estate. They were designated "plaintiffs" and she "defendant." This pleading alleged that "the paper and alterations as probated" was not the last will and testament of W.A. Williams. Appropriate references were made to the order of probate in the county court. With elaboration, it was charged that the testator did not have mental capacity sufficient to make the will; that he was unduly influenced by his wife; that the alteration was not made or directed to be made by him and was made by the defendant or others conspiring with her. It was prayed that the paper be set aside, together with the alteration and cancellation, and declared not to be the will of W.A. Williams. In her capacity as executrix and individually Mrs. Williams filed an answer traversing the allegations of the petition. At the next term of court an "amended petition" was filed in which the "plaintiffs" specifically withdrew from the "petition" all of the allegations of undue influence and those referring to the alteration. The pleas that the document was not Williams' will and that he was mentally incapacitated were not withdrawn. On the same day there was entered a judgment in which it is recited that the parties had agreed that the proceeding should be and "it is dismissed settled" and that the words which had been lined out were a part of the will; that by consent the order of probate "to the extent that it adjudges that those words are not a part of said will is reversed and annulled." The judgment directs the clerk to certify a copy of it to the county court clerk who is directed to make proper record as therein specified. This order was signed by the attorneys for the plaintiff, by Mrs. Williams, individually, and by her as executrix, and by "J.M. Benton, attorney for defendant." On the same day an order *117 was entered noting the withdrawal of Burnam Greenleaf as counsel for the defendant.
Later Mrs. Williams was adjudged to be of unsound mind. Her committee filed a suit for a declaratory judgment construing the will as thus probated by the circuit court. It was finally construed to devise a life estate to the widow with the remainder divided between her heirs and testator's heirs. Williams v. Williams' Committee,
Appellant's arguments, supported by his pleadings, in their essence are: (1) The judgment of the county court probating the will with the devise over eliminated is conclusive and could not have been set aside by an ordinary action at law, such as had been prosecuted in the circuit court; that parties could not confer jurisdiction by agreement, hence the procedure was coram non judice, and the judgment modifying the will as probated in the county court is void; and (2) that the will could not be set aside by the mere agreement of the beneficiaries.
There can be no question that the Statute of Wills (Kentucky Statutes, Section 4824 et seq.) is complete and that a judgment of probate in a county court having jurisdiction is conclusive unless set aside on an appeal to the circuit court in accordance with the prescribed mode. Patton v. Sallee,
It is upon such general propositions of law that the appellant rests his argument that since the contest of the Williams will was by a "petition" with the parties designated as "plaintiffs" and "defendants" it was an ordinary action at law and not an appeal; therefore, the court was without jurisdiction, and, having no power to enter the judgment, even by consent of the parties, it is a nullity. We think the conclusion attaches too much weight to nomenclature and form. The substance of the pleading presented in the usual and a sufficient form an appeal from the county court's order of probate and clearly was a contest of a will upon stated grounds. Our statutes (Section 4850) merely provide that: "An appeal may be taken from the county court to the circuit court * * * from every judgment admitting a will to record or rejecting it." Section 4859 calls this a "proceeding" in requiring that all necessary parties shall be brought before the court and permitting a trial by a jury. Though the statutes give the right of appeal they do not say how it shall be taken and designate no particular mode or form. While the Civil Code of Practice (Section 724) prescribes the method and procedure to be followed generally in prosecuting an appeal from judgments of the county court and other tribunals to the circuit court, it has been held several times that an appeal in a will contest is not embarrassed by the observance of those restrictive provisions. Gibson v. Crawford,
The appellant relies upon authorities of foreign jurisdictions which sustain in whole or in part his second proposition, namely, that a will made and probated in accordance with the statutes may not be set aside by the agreement of the beneficiaries. See 28 Rawle C. L. 357. But we have aligned ourselves with the majority of the courts in holding that an agreement by all heirs that a will should not be probated, so there could be an equal distribution of the estate among themselves, is valid and binding. Brakefield v. Baldwin,
We think the agreed compromise judgment valid.
Accordingly, the judgment is affirmed. *120