108 Ky. 511 | Ky. Ct. App. | 1900
Opinion of the court by
Beversinu.
Appellants, without notice to appellees, caused a papen dated July 22, 1893, to be probated in the McCracken County Court on the 12th day of May, 1897, as the last will and testament of Barbara Muller, deceased. Appellees appealed to the circuit court, and on the trial the jury found the .paper not to be the last will of Barbara Muller, and judgment was rendered in accordance therewith. This paper devised to appellants property of the value of several thousand dollars-, and excluded appellees, with the exception of a bequest of five dollars to each of them.
The grounds relied upon by appellees for setting aside.
Section 4832 of the Kentucky Statutes provides that “the will of a testator will be revoked by his subsequent marriage,” with certain exceptions pointed out in the statute. Section 4833 provides that “no will or codicil, or any part thereof, shall be revoked unless by the marriage of the testator, or by a subsequent will or codicil or by some writ
The testimony in this case shows conclusively the execution by the testatrix in 1895 of a testamentary paper. Graves, one of the attesting witnesses, says that decedent came to the office of Mr. Lightfoot and himself, accompanied by his son, for the purpose of having a will prepared; that he wrote tbe will at the dictation of Mr. Light-foot; that 'each clause was read and explained to testatrix; that it was duly signed and executed by her, and attested bjr himself and Mr. Winchester; that she took the will away with her; and that he had never seen it after-wards. The testimony of Winchester is to the same effect.
Contestants offered to prove by the witness Graves that the paper prepared by him was a lengthy document, purporting to dispose of the whole estate of testatrix, and that it was his recollection that it gave to contestant John P. Muller a house and lot in Paducah, Ky. This testimony was objected to, and the objection sustained, and we think erroneously. After proof that this paper was lost and could not be found, it was competent to establish its contents by parol testimony, and to show either that it con
In all of the instructions given, to the jury on the trial they were told, in substance, that the mere execution of a subsequent will was of itself sufficient to authorize them to find that the prior will had thereby been revoked, and all testimony offered byv contestants conducing to establish the contents of the last will, and to show its inconsistency with the former will, was excluded upon the ground that it was immaterial. We think the court erred in the instruction given to the jury and in the rejection of this testimony, and for these reasons the judgment is reversed, and the cause remanded for a new trial consistent with this opinion.