104 Ky. 396 | Ky. Ct. App. | 1898
delivered the opinion of the court.
By the will of Robert H. Newell, probated in 18C5, he devised specifically to each of his four sons and one daughter real property, valued by him at $14,000, giving to his executors the power to manage and control such property during the minority of each of them, and generally, all his other property. But by a codicil he provided that when each of his children arrived of age, and received his or her portion of his estate, the special devise of real estate should be valued by three disinterested persons, chosen by his executors or appointed by the court; and if their valuation differed from his, and would make such child’s portion unequal, the amount of such inequality was to be made up or deducted from such one thus arriving at age and receiving his or her portion, and so on until each child arrived of age and until a final distribution was made. It was also provided that his children should be in charge of his executors, -who were in terms appointed their testamentary guardians during their minority in connection with their executorship of his will. Chas. B. Coons and the testator’s widow, Eliza Jane Newell, were appointed executors, but no bond was required of them. Subsequently, the widow having died, John A. Nelson was appointed sole administrator with the will annexed. But in 1874, W. R. Newell was appointed administrator with the will annexed, Nelson having resigned or been displaced, and assumed the sole control of the estate and duty of executing the will. In 1893, Letitia N. Clift,, daughter and devisee of Robert H. Newell, united with her husband, C. B. Clift, brought this action against W. R. Newell to recover the following sums: (1) $1,400, which she alleged in her petition W. R. Newell, as administrator with the will annexed, illegally took from her
The only ground for that demurrer suggested by counsel is that, as appears alone from the caption, this action -was brought against appellee as guardian, when in fact he was not, as appears from the petition and exhibits, her guardian. That caption is in form as follows: “C. B. Clift' and Letitia Clift, his wife, plaintiffs, against Wm. R. Newell, guardian of Letitia Clift, defendant. Petition in Equity.” Waiving the question whether, when he qualified as administrator with the will annexed, he became' simultaneously, without so qualifying, testamentary guardián of appellant, it is unquestionably true, according to