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Opinion of the Court by

Judge O’Rear

Dismissing appeal.

This is an appeal from the judgment of the Pike Circuit Court, finding the paper in contest to be the last will of C. W. Williamson. The final judgment became effective in October of 1907. This appeal was prosecuted January 25, 1909. Appellees have interposed and rely upon the plea of limitation of one year in such cases.

In avoidance of the plea appellants assert that parts of the record were lost, and that because of that fact and other unavoidable casualty they were not able to have the transcript of the record filed in this court within one year from the time the final judgment was entered.

Section 4850, Ky. St. limits to one year the period within which appeals may be prosecuted to this court *31from judgments of the circuit court probating wills. If some casualty delayed the appellants in having the transcript prepared within that time, they should during that year, and while this court still had jurisdiction of the matter, have applied to this court for an extension of the time within which to have filed the transcript. Sections 738, 740, 758, Civ. Code Prac.; Hernstein v. Depue, 65 S. W. 805, 23 Ky. Law Rep. 1498; Bush v. Lisle, 86 Ky. 504, 6 S. W. 330, 9 Ky. Law Rep. 667.

It was held by this court in the case of Duff v. Duff, 103 Ky. 348, 45 S. W. 102, 20 Ky. Law Rep. 52, that the statutory bar of one year .in will cases may be available to the appellee by motion based upon proper plea, and made at or before the case is submitted on the merits. Such was the practice in this case, and the court has no option but to sustain the plea and motion.

Appeal dismissed.

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