194 S.W.2d 521 | Ky. Ct. App. | 1946
Affirming.
John B. Gorham, a resident of Fayette County, died *289 on July 1, 1943. His will which was probated the following week devised a farm of 144 acres to the Security Trust Company of Lexington, as trustee, to hold an undivided one-half interest therein for the benefit of John W. Marr for life, with the remainder to his children; an undivided one-fourth interest for the benefit of W.C.H. Wood, Jr., for life, with remainder to his children; and an undivided one-fourth interest to Elizabeth Clark Wood Mahoney for life, with remainder to her children. The will provided that should neither Wood nor Elizabeth Mahoney leave issue, his or her part shall go for life to the survivor of the two, and at the death of such survivor, it shall go to Marr for life, with remainder to his children. It is further provided in the will that neither the trustee nor the life tenant shall sell or mortgage the property.
Marr is living and has four children, Maybelle, over 21 years of age, Nancy, Martha and Mary, each under 14 years of age. Wood is living and has three children, Thomas, Robert and William, all under 14 years of age. Elizabeth Mahoney has no children.
On February 21, 1945, the trustee entered into a contract with appellants, Charles W. Adams and G.W. Greenup, by which it sold them this farm at $300 per acre, and it instituted this suit under the Act of 1882 (which is found immediately following sec. 491 of the Civil Code of Practice) to have the chancellor approve the sale and for reinvestment of the proceeds. There were averments in the petition, supported by proof, that it was to the benefit of all the owners, both present and remote, that the land be sold and the proceeds reinvested. Judgment was entered approving the sale and directing the reinvestment of the proceeds. While the purchasers are willing to carry out their contract, they prosecute this appeal and ask us to determine whether or not the proceeding was regular and vests a good title in them.
These questions are raised in appellant's brief: 1. Are all necessary parties before the court? 2. Can an action properly be brought under the Act of 1882 to have the chancellor approve a private sale? 3. Was the proof sufficient to sustain the sale in face of the provision of the will forbidding a sale? 4. Was the reinvestment of the proceeds in United States Government Bonds proper? *290
The petition was filed by the trust company as trustee under the will against the various beneficiaries, but instead of making the infants parties and bringing them before the court as is provided in sec. 52 (1) of the Civil Code of Practice, it merely named their guardians as defendants. A guardian ad litem was appointed, and the fathers of the infants as their natural guardians attempted to enter the appearance of their wards by filing answers for them confessing the averments of the petition. It is correctly insisted for appellants that the appointment of the guardian ad litem was unauthorized under sec. 38 of the Civil Code of Practice, because at the time he was appointed the infants had not been summoned as provided by sec. 52(1), and that neither the guardian ad litem (Walker v. Perkins,
The appellant purchasers intervened and filed a special demurrer calling attention to the fact that the infants were not made parties and that the appointment of the guardian ad litem should be set aside as being premature under sec. 38. Thereupon, the chancellor set aside the appointment of the guardian ad litem and permitted an amended petition to be filed in which the infants were made defendants and brought before the court by summons served upon their respective fathers as is provided in sec. 52(1), and the guardian ad litem was reappointed and filed answer. In a supplemental brief, appellants explained that they did not have the entire record before them when briefing the case and that the bringing of the infants before the court as required by sec. 52(1) is shown in the supplemental record filed in this court.
This action was correctly brought under the Act of 1882, the applicable part of which reads:
"Trust estates with remainder; sale of; investment of proceeds; improvements; taxes; insurance.
"That when lands are held in trust by one person for the life of another, with remainder over to a class *291 of persons, or to any person not ascertained or to be ascertained until the death of the person upon whose life such estate for life is made to depend, * * * It shall be competent for the circuit court or courts of like jurisdiction in the county in which such land or a part thereof is situated, in an action to which all persons having a present or vested interest in such land are parties, to direct the trustee to either sell or mortgage such land; but in all actions it must be averred and proven to the court that such sale or mortgage would be beneficial to all the parties concerned, and facts showing such benefits must be alleged and proven. * * * The proceeds of the sales authorized by this section shall be paid into court, and shall be reinvested by the court after first having, by appropriate order, provided for the payment of the costs and taxes, if any, in other property to be conveyed and held subject to the same limitations and trusts as the land sold was held. * * *"
The situation confronting us falls directly under the quoted part of the Act, as the trustee held the land for the benefit of the life tenants with remainder over to a class of persons (their surviving children) who cannot be ascertained until the death of the life tenants. In Noel v. Harper,
It is insisted for the appellants that under Powell v. Hester's Devisees,
Appellants point out that in Kelley v. Marr,
The petition alleges, and the proof shows, that a sale of this property and reinvestment of the proceeds was for the benefit of both the life tenants and the remaindermen. We will not take the time and space necessary here to review the evidence, as it will suffice to say that it was practically the same as that set out in the Kelley case,
There is no merit in the contention that as the will forbade a sale of this property by the trustee or any of the beneficiaries during their lives, the court cannot decree or approve a sale thereof. As was written in Consolidated Realty Co. v. Norton's Trustees,
Here, the chancellor directed that after the payment of the costs, the net purchase price of the farm, $41,382.45, be paid to the clerk of the court who should invest same in 2 1/2% coupon United States Government Bonds and then deliver them to the trustee to hold for the benefit of the devisees as provided in the will. The judgment further recited that the trustee, with the court's approval, could change the investment and reinvest the proceeds as the court may direct. Appellants argue that this amounted to turning the proceeds of the sale over to the trustee and if it should not properly account therefor, the infants could look to the land. The Act of 1882 provides that the proceeds of the sale shall be paid into court, and after the payment of costs, shall be reinvested by the court, subject to the same limitations and trusts as the land sold was held. The chancellor followed this provision of the Act to the letter. We can see no objection to the court reinvesting the proceeds in 2 1/2% United States Government Bonds, which is as safe an investment as can be found, and is one which the proof shows has a net return greater than that produced by the farm. Should a propitious opportunity arise, the chancellor may direct a sale of these bonds and order their proceeds reinvested in real estate.
While true in Bullock v. Gudgell,
The judgment is affirmed. *294