46 Ky. 13 | Ky. Ct. App. | 1846
delivered üie opinion of the Court.
In 1836 the last will of A. H. Carlisle was duly proven and admitted to record in the Harrison Circuit Court, and administration, with the will annexed, no executors being named in it, was granted to his widow, Nancy Car-lisle and John Mitchell, who, together with R. A. Collins and Levi Ashbrook as sureties, executed a joint administration bond. Subsequently the said Nancy departed this life, and administration upon her estate was granted to James W. Collins, the husband of one of the daughters of the testator.
This bill was filed by said James W. Collins and wife, and the other children of the testator, who being infants,
The bill, besides the foregoing facts, alledges-that the defendant, Mitchell, took upon himself mainly the administration of the estate of the testator; that no settlement was made by him’and said Nancy before her death, nor since by him, of the administration. A settlement is sought and appropriate relief against Mitchell and the securities.
The Court below was of opinion that the funds of the estate received by Mitchell, after deducting credits, together with the interest, amounted to $3,675 68, and that he and the sureties were responsible therefor to (he complainants, and decreed accordingly. To reverse that decree the defendants prosecute this writ of error.
The first question for consideration arises upon the construction of the following clause In the will of Car-lisle :
“As to my property and wealth, I first wish all my just debts and funeral expenses punctually paid, and the balance of my estate, wholly, I leave to my beloved wife, Nancy Carlisle, and to be disposed of by her and divided among my children at her discretion.”
The Circuit Judge was of opinion that under this provision the widow was entitled to a life estate and to the extent that the estate had come to her hands and had been appropriated by her to the use of herself and children, that Mitchell and the sureties were not responsible.
In that opinion we concur. The testator manifestly intended his children to have the benefit of his estate, but as they appear to have been all infants and all females, he vested a discretionary power in the mother as to the time and mode of appropriating it for their benefit. So far as she acted under the authority thus given her by the will, her acts were final and conclusive. But as she died without controlling or disposing of the estate in the hands of Mitchell, the complainants, at her death, became entitled to it, not as contended, as her heirs, but under the will of their father.
The complainants being her personal and legal representatives, it was impracticable to include them in the decree against Mitchell and Collins, &c., but as all proper parties were before the Court, an enquiry should have been directed as to the estate left by her and belonging to her in her own right, and the result of such enquiry would enable the Court to determine the extent of the liability of the other sureties. If she left estate, to which the complainants would be entitled or had received, equal to one third of the decree against Mitchell, or of the estate in his hands, it would follow that Collins and Ash-brook should only be subjected to the payment of the other two thirds. If her estate should be inadequate to
It is certainly true that according to the strict rules of chancery practice, the complainants should have presented their case in view of the principles, which we recognize as applicable to it. But as no objection on this ground was made in the Court below, and as all proper parties are before the Court, we think it unnecessary to drive the party to a new suit or even to require additional pleadings. Complete justice in the whole case, we apprehend, may be done in the mode indicated.
We are not satisfied that there is any error in the decree in regard to the amount decreed against Mitchell. It is manifest that he appropriated the funds of the estate, which came into his hands, to his own use; and upon that ground he was properly charged with interest.
Nor have the defendants any cause to complain that a refunding bond had not been executed. The decree provides that no execution shall issue thereon, and that the same shall not bear interest until the next term of the Court, nor until a refunding bond shall be executed according to law, and with security to be approved of by the Court.
The decree is reversed and the cause remanded for further proceedingsa and decree consistent with the principles of this opinion.