44 Ky. 369 | Ky. Ct. App. | 1845
delivered tire opinion of the Court.
The County Court of Maiion having admitted to record, a testamentary paper, purporting to be the last will and testament of Priscilla Kelly, a married woman, which had been offered for probate by the executor and devisees, and opposed by her husband, George P. Kelly, an appeal was taken by the husband, to the Circuit Couit for Marion county, from which, by change of venue, the case was removed to the Washington Circuit Court. Upon a trial by witnesses in that Court, the Judge being of opinion that the paper offered was not the last will and testament of the said Priscilla Kelly, reversed the order of the Marion County Court, admitting it to probate, and in effect rejected the will. And the devisees have appealed to this Court.
The case comes before this Court upon a record of the proceedings and evidence before the Circuit Court, and
The question of probate, as presented in this record, divides itself into two subordinate enquiries. 1st. Whether Priscilla Kelly had any power to make a will — and 2d. Conceding this, whether the proof is sufficient to establish the paper propounded as her will.
I. After what was said by this. Court in the case of Molly Yates’ will, (2 Dana, 215,) we deem itunnecessa» ry to go into any discussion or statement of the general doctrines, relating either to the probate of wills of married women, or their right to make a will, or an appointment in the nature of a will, either as belonging to the right of disposing of their separate estate, or in pursuance oJ^ an anri-nuptial agreement, or in the exercise of a power of appointment, reserved by or conferred upon sugpqent jn this case, as it was deemed to be *n to enquire whether Mrs. Kelly had prima facie, the power sufficient to authorize her to make a will, or an appointment in the nature of a will, disposing oí any ot the property mentioned in the paper in question. How far the power, if it exists, may have been pursued ot exceeded, and how far the will may be available as a disposition of property under the power, are ulterior questions not necessarily, nor properly presented for decision in the Court of Probate. The case already referred to shows that the order admitting such a will to probate, should leave these questions open. And the case of Johnson’s trustees vs Yates’ devisees, (9 Dana, 491,) upon the same will, shows, that after it was admitted to probate, some of its devises were decided to be inoperative, because they exceeded her power.
The alledged will in this case, bears date on the 8lh day of Dee. 1838. It recites that an agreement in writing had been executed before the marriage of the testatrix, by herself and G. P. Kelly, her intended husband and a trustee, but
Before the date of the will, George P. Kelly had, during the coverture, executed a deed to Jeroboam Beau-champ, as the friend and trustee of his wife, whereby for the recited consideration of a promise or agreement, made to and with his wife before marriage, he covenants to assure to her or to such person as she may by will or deed appoint, all the slaves which she owned at her marriage, and ho conveys said slaves to Beauchamp for the purpose of accomplishing the above object. And also covenants with him, that his wife shall have, and is hereby vested with full power and authority, so far as he can lawfully delegate it, to dispose of said slaves, and the increase, by will, deed or other lawful mode, to take effect after his death, &e. This instrument was executed also by the trustee and Mrs. Kelly.
A second instrument, under seal, was also executed by Kelly, before the date of the will, which recites “that there was a marriage article entered into between himself and his wife before marriage, which article he destroyed, which in substance was as followeth : Article of an agreement in three parts,” &e. What follows purports to be the precise terms, and is proved to be substantially the terms of the ante-nuptial agreement, of which it is intended to be a renewal. And this agreement contains a power to the wife to devise the entire estate of land, slaves and personalty which she owned at her marriage, reserving or securing to Kelly a life estate in all.
It is contended,4that the original instrument, of which this professes to be a copy or renewal, was not executed either by Mrs. Kelly, or by the trustee, and that as it contained mutual stipulations, it couldj not be, binding on Kelly when is was not binding on the other party. But the only evidence of its non-execution, is the statement of a single witness, that both Mrs. Kelly and the trustee had told him they had not signed it. But
If, therefore, the existence of the power depended upon the question whether the anti-nuptial agreement had been executed by Mrs. Kelly, we should be of opinion that a prima facie case in favor of the power had been shown, and this is sufficient in the Court of probate. But whatever may be the fact with regard to the execution of the anti-nuptial agreement, or whatever might by its effect if not executed by Mrs. Kelly, or whatever may be the effect of the second instrument executed by Kelly after marriage, by which the anti-nuptial agreement which he had destroyed, was intended to be resuscitated, we arc of opinion that the first post-nuptial deed made to Beau-champ, as trustee, contains a grant of power prima facie, valid and independent of the efficacy of the written marriage article, which authorized the testatrix to dispose of the slaves by will, and which therefore justified, and indeed required the admission of the will to probate, upon sufficient proof that it was the act of the testatrix, properly executed and attested as a will. If the testatrix was even mistaken in supposing the written anti-nuptial agreement was sufficient to sustain the power claimed, still if there is another valid grant of power, which is embraced in the general reference made in the will, the special reference to the anti-nuptial agreement can do no harm. Such special reference was unnecessary. By the deed now referred to, Kelly admits that he had promised, or agreed, before marriage, to assure to his intended wife, or to such person as she might by deed or will appoint, all the slaves, &c. As against him, this is certainly a sufficient consideration for making the promised assurance,
It is perhaps proper to add, that although it may be true, that the execution of the two post-nuptial deeds, on the part of Kelly, may have been induced by the discontent of his wife, and her refusal to live with him, first on discovering that he had destroyed the ante-nuptial agreement, and afterwards, on discovering that the first of these two deeds did not place her in the same condition with respect to her property that the agreement had promised, and although it be conceded that the immediate cause of his executing these instruments, was the desire of reconciling his wife, and bringing her back to his home, still it cannot be admitted that these considerations should have any tendency to invalidate the deeds ; they are the solemn acts of Kelly himself. Their recitals and stipulations, and especially those of the first deed, were not even dictated by his wife, but were voluntarily adopted by him. And they establish facts which show that he was under the strongest obligations of justice and honor, to execute these, or other more effectual deeds, rendered necessary by his own improper act. And they show that he had intended and committed an injury to his wife, which, while it was calculated to produce dissatisfaction and desertion, justified her in demanding, and in coercing, by such reasonable means as were in her power, a just reparation. Whether in pursuing these means, she confined herself within the bounds of strict prudence and propriety, it is wholly unnecessary to enquire. She
II. Assuming, then, that Mrs. Kelly was invested with power to make a will, but without now determining the extent of its operation, we come to the enquiry whether the proof is sufficient to establish the paper in question as her will. Without recapitulating the evidence on this subject, it is sufficient to say, that the formal execution and attestation of the will, are fully proved, and are not contested. But it is contended that the will was procured by the undue influence of a favorite nephew of the testatrix, who is the principal devisee ; that there is no evidence that she knew what was in it when she executed and acknowledged it, and that in fact, it should be regarded as the will of the nephew, and not of the supposed testatrix. We do not however admit that these are the proper conclusions from the evidence. It is true, that as Mrs. Kelly executed the will by affixing her mark instead of signing her name, it may be presumed that she could not read writing, and had not herself read the will. But it appears that she was a strong minded and intelligent woman, deeply and actively solicitous, and indeed jealous with regard to her own power of disposing of the estate which she had brought to her husband, and determined not to be cheated out of it. From these facts, and the fact'that she did actually execute and acknowledge the will in the presence of intelligent and disinterested witnesses, and that it was deposited with a friend whom she frequently visited afterwards, a presumption arises so strong, as scarcely to be overcome by any thing less than positive testimony to the contrary, that she did know what was in thé will before she executed it, and that it accorded with her intention. There is no proof that the will was not in her possession before it was executed, nor that it was not read over at the time. Whether it had or had not been in her possession for many hours, during which it might have been read to her, and wheth
It is to be observed too, with regard to the agency of the principal devisee, that the other devisees do not complain of any undue preference shown him in the will, or of any undue means used for obtaining it, or of his agency in any respect in procuring the execution of the will. They all unite with him in endeavoring to establish it; and it is Kelly alone, who has no interest in the proportional distribution of the property among the devisees after his death, that objects on the ground of undue preference among them, induced by the undue influence of one of them. Certainly there is no ground for inferring that Mrs. Kelly, who was so extremely and actively
Upon the whole, we are of opinion that the will was sufficiently proved, and therefore, that the Circuit Court erred in rejecting it, and should have regarded it as a valid disposition of so much of the property therein disposed of as Mrs. Kelly had under the several instruments and agreements above referred to, or otherwise power to dispose of by will. And as the order of the County Court, although it admitted the will to record without express restriction, ordered to record with it the two deeds above referred to, by which the power is proved, we do not deem any further or express restriction necessary.
Wherefore, the judgment and sentence of the. Circuit Court rejecting said will and reversing said order, is reversed, and the cause is remanded with directions to affirm the said order, and to remand said will and the said two deeds to the County Court of Marion, to be there recorded, if not already done.