94 Ky. 484 | Ky. Ct. App. | 1893
delivered the opieioe ov ti-ie court.
Jesse Wilcox, by Ms will duly probated in the' Kenton County Court, provides for the payment of his debts, &c., out of that portion of his estate that is thereinafter placed under the control of his executors, and the survivor or survivors of them, and which was not specially bequeathed to others. He confers on them and the survivor of them all other power and authority which he could give or confer in the premises, and all the power and authority which they needed in order to carry into full effect and execution, all and singular the provisions and purposes of his will, including the power to rebuild in case of damage or destruction by fire or otherwise, &c.
He instructed Ms executors to pay Ms widowed sister two hundred dollars annually during her lifetime. After providing for the payment of other specific sums to his nephews and nieces, he gave to his only daughter, Jesse, then a minor, a life interest in the remainder of his estate of every Mnd and de
Crawford, one of the appellees, alone of the two executors appointed in the will, qualified. He took charge of the property, and since 1875 has controlled and managed it in pursuance of the provisions of the will. Finding the real estate in Covington unproductive, the houses becoming dilapidated and in need of expensive repairs, he brought this action in November, 1891, in conjunction with the daughter, Jesse Wilcox Wilson (she having married), and her husband ; also Mildred Wilson, a minor, the child of Jesse Wilcox Wilson, who sued by her next friend, W. A. Crawford, and the nephew and nieces named as con
It seems to us that the executor was a trustee. His duties were not merely to pay debts and legacies, but the body of the property was put under his ‘' control ’ ’ out of which he was to pay the income to the widow and child of the testator, and an annual sum to one of the legatees “during her lifetime.” He appointed two executors, and expected them both to qualify, and upon the death of one, he continues the powers given to the “survivor,” thus showing the permanency of the power and authority granted to carry into effect the provisions and purposes of the will,’ including power to rebuild the houses, &c. And the trustee held for the life of the daughter, Mrs. Wilson, with remainder over to a class — her children, if she had any, or if she had none or none reaching the age of twenty-one, then over to others. These were all parties to the action, and we think it matters not in this proceeding whether they are before the court as plaintiffs or as defendants.
This amendment requires the execution of no bond, by guardian or committee, for_ the obvious reason that
It is necessary to aver and prove facts showing the sale to be beneficial to all the parties concerned, and this was alleged in this case and shown beyond question. The amendment of April, 1882, was a substantial re-enactment of the second section of an act amending chapter 86 of the Revised Statutes, approved February 16, 1858, and sales and reinvestments were upheld under that act in proceedings similar to the one now under consideration. (See Paul v. Paul, &c., 3 Bush, 484, and Ewing v. Riddle, &c., 8 Bush, 568.)
The case of Barnett v. Bull, 81 Ky., 127, relied on by the appellant, was under section 491 of the Code. We find nc case determined under the amendment of April, 1882, but obviously the same cons’ruction should be adopted in considering it, as was adopted when the analogous section of the act of 1858 was considered and construed.
The appellant Craig gets a good title under his purchase, and the judgment to that effect is affirmed.