Cook v. Brown

Court of Appeals of Kentucky

Cook v. Brown

346 S.W.2d 725, 1960 Ky. LEXIS 11

CourtCourt of Appeals of Kentucky

DecidedMay 27, 1960

StatusPublished

Cited by4 cases

This text of 346 S.W.2d 725 (Cook v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cook v. Brown, 346 S.W.2d 725, 1960 Ky. LEXIS 11 (Ky. Ct. App. 1960).

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Opinion

BIRD, Judge.

This is an appeal from a judgment directing that a lost will be probated.

The record and the briefs are quite lengthy. However, careful scrutiny reveals only one question to be resolved. The proponents must meet 'the burden of proving the continued recognition of an unrevoked will. Gibbs v. Terry, Ky., 281 S.W.2d 712. Did the proponents meet that burden?

The trial court, over contestants’ objection, permitted the attorney for the, administrator with the will annexed- to testify. His testimony was sufficient to meet the burden of proof. However, contestants insist that the attorney has such monetary interest in the estate as to make him an incompetent witness. They cite KRS 421.210 as the basic authority for their contention. We do not agree. It is provided in KRS 394.200 that executors may testify either for or against a will and in Reiter v. Harding, Ky., 290 S.W.2d 829, 830, we said:

“ * * * Moreover, we have held that an executor as such is not an interested party within the meaning of KRS 421.210. Swinebroad v. Bright, 116 Ky. 514, 76 S.W. 365, 25 Ky.Law Rep. 742; Knuckles v. Howard, 261 Ky. 89, 87 S.W.2d 106. If the executor is not an interested party within the meaning of this statute, certainly the [726]*726attorney acting for the executor is not.”

Obviously the same rules apply to an administrator with the will annexed and his attorney.

We find no error. The judgment is therefore affirmed.

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BIRD, Judge.

This is an appeal from a judgment directing that a lost will be probated.

The record and the briefs are quite lengthy. However, careful scrutiny reveals only one question to be resolved. The proponents must meet 'the burden of proving the continued recognition of an unrevoked will. Gibbs v. Terry, Ky., 281 S.W.2d 712. Did the proponents meet that burden?

The trial court, over contestants’ objection, permitted the attorney for the, administrator with the will annexed- to testify. His testimony was sufficient to meet the burden of proof. However, contestants insist that the attorney has such monetary interest in the estate as to make him an incompetent witness. They cite KRS 421.210 as the basic authority for their contention. We do not agree. It is provided in KRS 394.200 that executors may testify either for or against a will and in Reiter v. Harding, Ky., 290 S.W.2d 829, 830, we said:

“ * * * Moreover, we have held that an executor as such is not an interested party within the meaning of KRS 421.210. Swinebroad v. Bright, 116 Ky. 514, 76 S.W. 365, 25 Ky.Law Rep. 742; Knuckles v. Howard, 261 Ky. 89, 87 S.W.2d 106. If the executor is not an interested party within the meaning of this statute, certainly the [726]*726attorney acting for the executor is not.”

Obviously the same rules apply to an administrator with the will annexed and his attorney.

We find no error. The judgment is therefore affirmed.

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346 S.W.2d 725, 1960 Ky. LEXIS 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-brown-kyctapp-1960.

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