11 S.W.2d 918 | Ky. Ct. App. | 1928
Reversing.
This appeal questions the right of a nominated executor in an earlier will to resist the probate of a later one of the same testator on the grounds of mental incapacity and undue influence.
Susan A. Marshall executed a paper dated August 13, 1915, purporting to be her will, in which James M. Collins, of Maysville, Ky., was nominated as executor. *768 That paper was left in the custody of Collins, to be probated as her will in the event of testator's death. She made several codicils to the alleged will; the last one being dated April 10, 1923.
On January 3, 1924, another paper purporting to be her will was executed by the same Susan A. Marshall, in which she nominated the Bank of Maysville, of that city, as executor. Testatrix died on June 15, 1927, and at the next ensuing term of the Mason county court both papers were presented for probate. The later will was admitted to probate, and the earlier will was rejected. Collins appealed to the Mason circuit court from the order probating the will of January 3, 1924, and also from the order rejecting the earlier will offered by him. The circuit court dismissed the appeal of Collins on the ground that a nominated executor in an earlier will had no right to appeal from orders probating a will executed later, and rejected the one in which he had been nominated as executor. Collins appeals to this court for a reversal of the order of the circuit court.
It was held in Wells v. Wells, 4 T. B. Mon. 152 (16 Am. Dec. 150), that a will may be presented for admission to probate by either an executor, legatee, or devisee.
In Pryor v. Mizner,
"It is made the duty of the executor to execute the will of the testator, and it is also incumbent upon him to present the will to the county court of the testator's residence for probate; and while he can not act as executor until his qualification as such, it is difficult to perceive how he can qualify until the paper is adjudged to be the last will of the devisor; and having presented the paper to the proper tribunal *769 for probate, it would be a dereliction of duty on the part of the executor, if he was satisfied that the paper was the last will of the testator, to permit its probate [to be] denied without any additional effort to have the will recorded. It is true the judgment of the county court would ordinarily protect the executor; but as the duty of executing the will has been confided to him by the devisor, good faith requires that he should exhaust the remedy afforded him by law for having the will probated, if he is satisfied it was improperly rejected by the county court."
Again, in Phillips' Ex'r v. Phillips' Adm'r,
In Egbert v. Egbert,
In view of the controlling precedents we have noted, it is apparent that the circuit court erred in dismissing the appeal of the nominated executor of the earlier will of Susan A. Marshall, and in denying him a trial of his contest of the later will.
The judgment is reversed for proceedings consistent herewith.