92 Ky. 263 | Ky. Ct. App. | 1891
delivered the opinion op the court.
Matthew H. Coats died in July, 1883, in the city of Covington, leaving his widow, Beulah Coats, surviving him. He owned a considerable estate that he disposed of by his last will by the terms of which his widow became the principal devisee. He left no children, and the ex
The provisions of the will necessary to be considered are as' follows: First — I direct that all my just debts and funeral expenses be promptly paid. Second — I hereby bequeath to my beloved wife, Beulah W. Coats, all the-remainder of my estate, real and personal, and of every description, and all I may hereafter acquire to be at the (her) absolute disposal to sell, convey, transfer or expend as she may deem proper during her lifetime, without restraint, she to receive all rents, dividends or interest on investments or to convert the same into money or other investments at her discretion, and after her death the remainder of my estate unexpended by her I devise and bequeath as follows: First — To the payment of t]ie just debts and funeral expenses of my wife; next, at the suggestion and the concurrence of my wife I bequeath tO' the asylum for aged men, located on McMillen Street, Cincinnati, 0., the sum of five hundred dollars. All the rest and remainder of my estate, and with the full concurrence of my wife herein, I devise and bequeath as follows, etc. The testator then proceeds to make specific devises to various persons who are related by blood, some to the wife and others to the testator, giving one-half to his own kindred and the other half to the kindred of the wife. He then says, in making the above bequests, “ I have recognized the right of my' wife to dispose of one-half of the estate, regarding her as a full partner with me in property as well as in affection.”
The widow was left sole executrix of the will, and qualified without giving security, such being the request of the testator, and the estate passed into her hands. At
In the items of the personal property that passed, by the will of the testator, were one hundred shares of the capital stock of the appellee. This stock Hopkins obtained the possession of, and having sold it, the stock was transferred to the purchaser on the books of the corporation.and the old certificates taken up. The widow, having died, Hopkins and the appellant, William G-. Allen, qualified as executors of the will of the testator, and shortly after, Hopkins, becoming insolvent, was removed- by the Kenton County Court, and Allen, the-appellant, left the sole executor. The present petition was then filed by Allen as executor against the appellee, in which it is alleged that the attorney in fact, Benjamin E. Hopkins, without the knowledge or consent of the widow, Beulah W. Coats, obtained possession of three certificates of- stock and sold the same during her lifetime ; that he presented the certificates, accompanied by the power of attorney referred to, at the office of the appellee and signed the printed indorsement on the back of the certificate as follows: “ Matthew H. Coats, deceased, by Beulah W. Coats, executrix, by Benjamin E. Hopkins, attorney in fact, per W. H. Coon, attorney.” That Hopkins-
It is insisted by counsel for the appellant that the widow of the testator held only an estate for life in the property devised, with the discretionary power of disposal, and that the exercise of this-discretion could not be given to another, and, therefore, the sale and transfer of the stock by the attorney in fact was void, and if not, all the estate that could pass by it was the life interest of the widow. That the appellee is chargeable with notice of the extent of the power conferred on the widow, and, in addition, it is said no legal transfer of the stock was, in fact, made by the agent or attorney. On the other hand it is maintained by counsel for the appellee that the devise to the widow with the unlimited power of disposition during her lifetime, carries with it a fee, and the
His wife must have been the principal object of his bounty, and it was his intention to vest in her the power to sell any part of the estate devised during her life. He had consulted her in regard to his will, and, recognizing her right to one-half of the estate, that the labor of each had no doubt contributed to acquire, he devised the estate left unexpended by her in equal portions between their relatives, giving one-half to his wife’s kindred. It was not his purpose, however, in creating the remainder to restrain his wife in her right to use the estate during her life in any manner she saw proper, but gave her the express power to sell, convey, transfer or expend it during her lifetime without restraint if she desired to do so, and of the rents, dividends and interest on investments she could invest at her discretion, and after her death the remainder unexpended he devised to their kindred.
She was accountable to no one if she sold the estate and applied the proceeds as she saw proper. The exercise of the power was for her benefit alone, and not of those in remainder. Théy could not have prohibited its exercise by her unless her mind had become so impaired as to prevent her from contracting and disposing of such an estate. The entire property was devised to her that she might use and dispose of it as she saw proper during her lifetime. The words as she sato proper and without
In the ease of McCullough’s Adm’r v. Anderson, reported in 90 Ky., 126, the devise was, “‘To my most precious and well-beloved wife I give, during her life, all my estate, real and personal, whether in possession or action, with full power and ample authority to dispose of the whole of it as she pleases. At her death, should she not have previously made a testamentary distribution of all remaining undisposed of by her, I desire that such remainder shall be distributed as herein directed.” In a controversy between the devisees of the testator and the heirs of his widow as to the right of property in that part of the estate left by the widow, it was held that the devisees were entitled and not the heirs of the wife ; that the wife took a life estate with the power to convert it into a fee that she failed to exercise.
In the present case the devisor wished his wife to appropriate all of the estate she desired by sale or otherwise.
It is said by the appellant’s counsel that the power of disposition by Beulah Coats, the widow, was discretionary, and in transferring or conveying the estate entrusted to her she could not lawfully delegate the exercise of this discretion to Hopkins. There was, in one sense, a trust by reason of this provision of the will, for so long as she held the property undisposed of it was for the benefit of those in remainder at her death, but when selling the corpus of the estate she was executing the power for her,
Judgment affirmed.