144 Ky. 99 | Ky. Ct. App. | 1911
— Reversing.
At the March term, 1903, of the Boyle County Court the will of Lou T. Scott, a resident of that county, was duly probated. It seems that nothing more was done until March, 1908,- a few days before the expiration of five years, the time within which to take an appeal to the circuit court, when J. W. Scott, a brother of the testatrix, filed a statement in the circuit court for the purpose of taking an appeal to that court. He named as defendants in the statement M A. Roy, R. J. Gresham, Lydia Lanham, Sallie C. Scott. Mattie B. Scott, R. S. Scott, Southern Baptist Theological Seminary and Louisville Trust Company, and had process issued against each of them except R. S. Scott, who was, at that time, a resident of Oklahoma City, Okla. About ten or twelve days after the expiration of the five years, he made the usual affidavit for a warning order, and the clerk appointed an attorney to correspond with R. S. Scott. The attorney accepted the appointment and performed his duty. R. S. Scott answered his communication and stated, in effect, that he desired to join J. W. Scott in contesting the will, and the attorney handed the letter to appellant’s counsel.
On motion of Mattie B. Scott, and the Southern Baptist Theological Seminary, the appeal to the circuit’ court was dismissed because, as stated, the appeal was not taken within the five years next after the will was probated. The point of objection was that there was no summons or warning order issued for R. S. Scott, who was a non-resident, until after the five years had expired, and, therefore, the court had no jurisdiction of the appeal.
We have not been cited to nor have been able to find any opinion of this court that sheds any light upon the question in issue. Appellees claim that the following lines of section 4859, Kentucky Statutes, control the question, to wit:
“When the proceeding is taken to the circuit court, all necessary parties shall be brought before the court by the appellant. ’ ’
Counsel give us quite- a discussion on the meaning of the word “when,” as used in the quotation, but we receive no material aid from it as the authorities cited by
For these reasons, the judgment of the lower court is reversed, and cause remanded for further proceedings consistent herewith.