148 Ky. 196 | Ky. Ct. App. | 1912
Opinion of the Court by
Affirming.
These two actions, which are similar in their facts, will be disposed of together.
M. F. Crenshaw and M. V. Dulin brought the suits against E. B. Long, as executor of J. D. Ware. Each alleged in his petition in substance that he had bought of Long, as executor, twenty-five shares of stock in the Acme Mill & Elevator Co., at $80 per share; that the stock was sold them by R. W. White as agent of the executor and that White fraudulently represented to them that the stock was worth par; that the company had a surplus of $20,000, and that he had examined the books and knew these to be the facts, when in truth the company had no surplus and was insolvent, and White and Long knew this. The executor filed an answer traversing the allegations of the petition; proof was taken and, on final hearing, the circuit court dismissed the actions; the plaintiffs appeal.
Long was paralyzed not long after the suits were filed and died before the hearing of the actions; his deposition was not taken, nor the deposition of White. The plaintiffs each testified that White made to them
. It is: insisted, however, that Long as executor, made the sale in violation of section 4707, Kentucky Statutes, which among other things, provides: “No administrator or executor shall sell any dividend paying .stock or bonds or other securities which the decedent owned at his death, until so ordered by a court of general equity jurisdiction in the county in which letters of administration were granted or the will recorded.” The will of Ware, among other things, contains this provision: “All stocks and bonds now held by me in the Acme Mill and Elevator Co., and the American Tobacco Co., I consider good property and would suggest to my executor that they remain just as they are for the reason they all (about $40,000) are averaging nearly 8 per cent per annum.” This provision of the will was not intended to forbid the executor making a sale, but only as a suggestion as to what the testator thought, advisable. By the will, Long was not only made the executor but also guardian of the children, and he was to hold the estate and manage it and turn it over to them when they were twenty-five years of age. The executor and guardian was expressly authorized to sell the land and, when the whole will is read, we think there is no doubt that the testator intended to confer on him power to change an investment when he deemed it best. The statute does not apply where the testator, by his will, invests his executor with discretionary power to make sales of his stocks and bonds. (Trimble v. Lebus, 94 Ky., 304; Chappell v. Chappell, 30 Ky. Law Rep., 935.) In addition to this we have several times held that where an executor is directed to hold the fund and pay over the annual interest, he will be held to hold the money as a trustee and not as an executor, after the lapse of a reasonable time for the settlement of the estate as executor. (Lasley’s Exor. v. Lasley, 1 Duvall, 117; Neeley v. Merritt, &c., 9 Bush, 346; Warfield v. Brand’s Admr., 13 Bush, 98; Givens v. Flannery, 105 Ky., 451). It will be observed that the statute uses the words, “no administrator or executor.” It does not include a trustee or guardian. The reason for the distinction is obvious. It is the duty of a personal representative, within the time allowed by law, to
The judgment in each case is affirmed.