165 Ky. 251 | Ky. Ct. App. | 1915
Opinion of the Court by
Reversing.
. J. M. Bigstaff died testate in Montgomery County, Kentucky, the owner at tlie time of bis death of about two thousand acres of land, and a very large estate in personal property, and by the terms of the fourth clause of his will, he devised to each of his four grandchildren, James and Alexine Bigstaff, and Mary and Margaret Ragan, the sum of $10,000.00 each, to be invested in real estate, and the title thereto to be taken to them, for and during their natural lives, with remainder to their chil
By the fifth clause of his will, he devised the entire residue of his estate, real, personal, and mixed, to his wife, Mary E. Bigstaff, for and during her natural life, and at her death to be equally divided between his four children, Thomas J., Samuel, and Fenton Bigstaff, and Lizzie Ragan, to be held for- and during their natural lives, with remainder to their children at the time of their deaths, and if any of his children should die before or after his wife’s death, without leaving living issue, then the part of his estate so devised to said child should revert and become a part of his estate, and pass under the provisions of the fifth clause of his will. He further directed that at the death of his wife, that his personal estate should be invested in real estate, and the title to same should “be taken, held, and to pass as herein-above set out in the fifth clause of my will. ’ ’
After his death the will was duly probated, and thereafter the widow, Mary E. Bigstaff, renounced the provisions of the will so far as same applied to her, in the manner and within the time prescribed by law for her so doing. In the division of his real estate, 375 acres of land was alotted to Thomas J. Bigstaff, to be held by him under the terms of the will, for and during his natural life, and at his death to pass to his children who might be living at that time, and if he should die without leaving living children, then to revert to the other heirs of the testator.
In a suit, prosecuted by the administrator with the will annexed, for a construction of the will and a settlement of the estate, the circuit court adjudged that a trustee be appointed to receive the portion of the personal estate to which Thomas J. Bigstaff and his children were entitled, under the fifth clause of the will, and ordered the administrator to pay over such part to the trustee. John S. Frazier qualified as such trustee, and' there was received by him, under the j’udgment of the court, about $9,000.00. Under the will, Thomas J. Big-staff is entitled to the income from the sum of money in • the hands' of Frazier, as trustee, for and during his natural life, and the principal of it then passes to the children of Thomas J. Bigstaff, who may be living at the'
The 375 acres of land allotted to Thomas J: Bigstaff during his life time is farming land and only useful for such a purpose. It appears that there was no substantial fencing upon the farm, nor any substantial barns, or cribs, or dwelling houses. For the purpose of making the property useful and available to him for farming-purposes, Thomas J. Bigstaff constructed fencing upon the lands, at a cost of about $750.00. An old dilapidated barn upon the place was reconstructed and repaired, at an expense of about $350.00. There was no corn crib on the land, and Thomas J. Bigstaff caused to be erected a corn crib, at a cost of about $300.00. An old tenant house, which was scarcely fit for habitation was repaired, at a cost of about $500.00; a servant or tenant house near the residence was built, at a cost of about' $750.00; a log house was erected on the farm, at a cost of $750. The dwelling house upon the farm was a large-old time styled brick house, but which was greatly out of repair, and the life tenant caused it to be repaired, and furnished it with modern waterworks, lighting, and other improvements necessary for the use and enjoyment of it as a home, at a cost of $12,000.00. The improvements seem to be substantial and permanent. After making these improvements, Thomas J. Bigstaff,it seems,paid for same, and filed this suit against his trustee, Frazier, alleging that the improvements had increased the vendible value of the farm to the extent of $12,000.00, and that an investment of the funds in Frazier’s hands, as trustee, in these improvements would be an investment-in real estate, as directed by the will, and asking the court to require the trustee to pay over to him the personal property in his hands, in payment for the improvements. James Bigstaff and Alexine Bigstaff are the only children of Thomas J. Bigstaff, and they are infants, but over fourteen years of age, and they are made parties to this suit, and a guardian ad litem appointed for them,, as the .appellee, Thomas J. Bigstaff, is their statutory guardian. The guardian ad litem for the infants and, also, the trustee, demurred to the cross-petition of the appellee, Thomas J. Bigstaff, and the trustee filed an answer, in which he denied that the investment of the funds in his hands in the improvements
, The question presented for decision is, whether payment -of $11,000.00 of the trust funds in the hands of the trustee, to the life tenant for these improvements is an investment in accordance with the provisions of the will of the testator, and whether the circuit court was in error when it ordered the payment of the trust funds to the, life tenant on account of’ the improvements made upon the lands by him.
It is always the duty of a trustee, in the administration of the trust fund, to look to the interest of both the. life tenant and the remainderman, where ^the fund is the property of one for life with remainder to another. Tt is his duty, where he is without specific, directions, in the instrument creating the trust, to so invest it as to make the income profitable to the life tenant,.and to preserve the principal of the fund for the remainder-man. It could not.be contended, in the case at bar, that the life tenant of the land upon-which the improvements are situated, could make' any charge against the trust estate, or against the remainderman, for the cost' of their construction. He knew the character of his title, and made the improvements of his own volition, and -it must be presumed that he did so for his own benefit. In fact, in his petition, he alleges that he made the improvements
The trust fund, which is sought to be appropriated in the case at bar, for the payment of improvements made by appellee upon the lands, is a fund held under an express trust. The will of the testator expressly provides ‘ that it' shall be invested in real estate, and the title -taken to appellee for life, and to the infant appellants, in remainder, subject to the conditions imposed by the fifth clause of the will. While houses and barns and permanent fencing are embraced in the term “real estate,” it is only because of the fact, that they are attached to ‘'the'land,'and intended to be permanently situated upon ,ii ,.IRhe direction in.the .will as to how .the title to the real estate, in which the trust fund was "to be invested,
In 39 Cyc., 405, the rule is stated as follows: “Where the author of a trust gives explicit directions as to the classes of securities in which the fund shall be invested, it is the duty of the trustee to follow the instructions literally, and he will be liable for departing therefrom, unless no such investment as directed can be made, or the safety of the investment has become doubtful by reason of supervening circumstances, in which case it is the duty of the trustee to invest the fund in the best manner practicable under the circumstances.” Transylvania University v. Clay, 2 B. M., 385.
From the fact that the testator could not have anticipated that his widow would renounce 'his will, and thus free the lands upon which the improvements are situated from her life estate, and enable appellee to at once come into possession of them, and the other circumstances, in proof, it is manifest that he intended that the funds should be invested in the simple purchase of lands, and not otherwise, and when he used the words “real estate,” he meant and intended the freehold title to lands.
For the reasons .indicated, the judgment appealed from is reversed, and this cause remanded for proceedings consistent with this opinion.