124 Ky. 302 | Ky. Ct. App. | 1907
Opinion of the Court by
Reversing.
L. D. Bottom, wife of George C. Bottom, died March, 10, 1903. On March' 12th her will was admitted to probate in the Fayette county court, and on March 16th Georg’e Fultz, appellee, filed his suit in the Fayette circuit court on a return of no property on a former judgment against appellant George C. Bottom, seeking to subject the interest of appellant in the estate of his wife to the payment of his judgment debts, and asking that appellant be required to elect whether he would take under the will of his wife, or take the interest given him by law in the estate of his wife, and asking for a construction of this will. Appellant demurred to the petition. His demurrer was overruled, and he declining to plead further, the court entered the following judgment: “It is adjudged by the court that defendant, G'eo. C. Bottom, under the terms, of the will of L. D. Bottom, deceased, took a life estate in all the property of every kind of said L. D. Bottom, deceased, with remainder over to defendants, Lillian De Bond and Firm K. Bottom, and that said estate for life so taken by defendant, Geo. O. Bottom, is subject to said defendant, Geo. O. Bottom’s debts,, and subject to this plaintiff’s debt herein set up; that the clause in said will by which the testator, L. D. Bottom, deceased, sought to prevent said estate in the hands of defendant, Geo. O. Bottom, from becoming liable for his debts, and providing that in the event it should be held by a court of competent jurisdiction that said
The clause of the will of L. D. Bottom which is involved in this controversy is the third clause, and is as follows:
‘ ‘ Third, I give and bequeath to my husband, George C. Bottom, all my estate of every character and description, to be held by him in trust for my two children, Lillian De Bond and Firm K. Bottom. My said trustee is hereby empowered to continue to conduct in my name the saloon which is now being operated in my name so long as he deems- it wise and desirable to do so, but he may at any time, in the exercise of his best judgment, sell and convey the same, and reinvest the proceeds in any manner that may seem best to him. My said trustee is hereby expressly empowered to invest the proceeds of the sale of my real estate, and such money, ehoses in action, or other securities, as I may own at the time of my death in any manner he may think best, but the income derived from my estate, I desire to be devoted to the maintenance and support of my said husband for and during his natural life. It is my wish that my husband, Geo. O. Bottom, shall confine himself solely and exclusively to the income derived from my estate, and in no wise encroach upon the principal for his maintenance and support. It is my wish and I do direct that no part of my property shall be encumbered by, or its' rents and profits be in any way subjected to, the debts of my said husband, either by process of law or- by any order, assignment or contract he may make, and should it at any time be held by a court of competent jurisdiction that said*306 rents and profits are liable to be subjected to the debts of my said husband, Geo. C. Bottom, then, and in that event, I direct that all interest of my said husband in my estate shall instantly cease, and thereafter the rents and profits derived from my property shall be paid over to my two children, the said Lillian De Bond, and Firm K. Bottom.”
Two questions are presented for consideration: First, can the appellant, at the instance of a creditor or any one else, be required to elect whether he will take under the will of his wife, or take the interest which the law would give him in the estate of his wife, and reject the will? and, second, whether that portion of clause 3 of the will, which directs that, in the event.it should be held by a court of competent jurisdiction, said estate is subject to the debts of appellant, said estate shall at once pass to the children of testator, is void, and of no force and effect. Section 2132 Ky. Stats., 1903, provides : “After the death of either the husband or wife, the survivor shall have an estate for his or her life in one-third of all the real estate of which he or she, or any one for his or her use, was seized of an estate in fee simple during the coverture, unless the right to such dower or interest shall have been barred, forfeited or relinguished; and the survivor shall have an absolute estate in one-half of the surplus personalty left by such decedent. ” Under this section of the statute the surviving husband or wife stands upon the same plane. Either takes an estate for life in one-third of all the real estate of which the other is seized in fee simple during the coverture, and an absolute estate in one-half of all the surplus personalty. Section 1404 provides the manner in which a widow may renounce her husband’s will. This, section does not apply to the surviving husband. Section 2067 pro
This court has decided, in the case of Brand v. Brand, 60 S. W. 704, 22 Ky. Law Rep. 1366, Grillispie v. Boisseau, 64 S. W. 730, 23 Ky. Law Rep. 1046, and Smoot v. Heyser, 113 Ky. 81, 67 S. W. 21, 23 Ky. Law Rep. 2401, that a husband may renounce the will of his wife, as provided by section 2067. This is a personal privilege given to the husband, and it is one which, he may exercise or not, at his pleasure; and we are of opinion that the court could not require of appellant that he exercise that right. The law provides that he may, within one year, renounce the will, and elect to take under the law. If he wishes to avail himself of his statutory right, he must follow the provisions of the statute, and his failure to do so within the time prescribed amounts to an election on his part to' stand by the provisions of the will; but he has the entire year within which to act. The trial judge was evidently of opinion that appellant could not be required to elect, and, as he had not renounced the will as prescribed by law, that he was taking under it.
So we come to a consideration of the second question, which is: Was the clause which provided that in the event it should be held by a court of competent jurisdiction said estate was subject to appellant’s debts said estate should at once pass to decedent’s children, void, and of no force and effect? Appellant relies upon the case of Bull, etc., v. Kentucky National Bank, 90 Ky. 452, 14 S. W. 425, 12 Ky. Law Rep. 536, 12 L. R. A. 37, to uphold the validity of the clause of
Appellee insists that the doctrine laid down in the case of Bull, etc., v. Kentucky National Bank is not applicable to the case at bar, for the* reason that in the Bull case the testator was the absolute owner of the property devised in his, will, whereas, in the case before us, the husband had in law an absolute estate in the property of his wife upon her death. It is true that the law gives to the husband an estate in the property of the wife at her death, but it is equally true that, under the statute, she is empowered to dispose of such! property as she may own by will, and if,
The trial eourt.should have sustained the demurrer to the petition, and this cause is remanded, with instructions so to do.