Legal Opinion

Phillips' ex'r v. Phillips' adm'r

Court of Appeals of Kentucky

Decided October 11, 1883PublishedCited by 25 opinions

Case 51 — PHILLIPS’ WILL APPEAR PROM LINCOLN COMMON TLEAS COURT. 1. Ray and Doom, the two devisees, under tlie will of 1877, were incompetent to testify in the case. (Section 606, Civil Code; Mercer v. Macklin, 14 Bush, 436; Gen. Stat., ch. 113, sec. 13.) 2. The court erred in giving judgment against appellant individually for the costs of the case and awarding execution against him.

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Case 51 — PHILLIPS’ WILL APPEAR PROM LINCOLN COMMON TLEAS COURT. 1. Ray and Doom, the two devisees, under tlie will of 1877, were incompetent to testify in the case. (Section 606, Civil Code; Mercer v. Macklin, 14 Bush, 436; Gen. Stat., ch. 113, sec. 13.) 2. The court erred in giving judgment against appellant individually for the costs of the case and awarding execution against him. It is the duty of a nominated executor to offer the will for probate in tlie county court, and if he be defeated there, to appeal to the circuit court. If such were not the case, few wills would ever be…

1Opinion of the Court

JUDGE HINES

delivered the opinion of the court.

This is a contest as to which of two papers is the true and last will of D. M. Phillips. The paper purporting to have been executed in 1869 gives the property to the nominated executor, J. G. Phillips, in trust for the son of D. M. Phillips, and in case of his death, to certain charitable uses. The-other paper, executed after the death of the testator’s son in 1877, gives the estate to B. H. Ray and Ben. Doom, nephews of the testator, and nearest of kin, to whom the estate would have passed in case of intestacy. The J. G. Phillips, the nominated…

2Cases cited2 opinions

  1. Flood v. PragoffCourt of Appeals of Kentucky · 1881
  2. Milton v. HunterCourt of Appeals of Kentucky · 1877

3Cited by25 opinions

  1. Martin v. McAdamsTexas Supreme Court · 1894
  2. Meeker v. MeekerSupreme Court of Iowa · 1888
  3. Dodd v. . AndersonNew York Court of Appeals · 1910
  4. Taylor v. MinorCourt of Appeals of Kentucky · 1890
  5. Russell v. TylerCourt of Appeals of Kentucky (pre-1976) · 1928

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