190 Ky. 699 | Ky. Ct. App. | 1921
Opinion op the Court by
Affirming on the original and on the cross appeal.
On the 10th day of March, 1896, Francis J. Rottinghans died testate a resident of Kenton county. His will, thereafter probated in the Kenton circuit court, directed the payment of his debts and then gave to his wife, Gresina Adelheid Rottinghaus, the remainder of his property, both personal and real, for her use during her natural life. After her death he devised his residence in Covington to his daughter, Elizabeth Anna Fischer, the wife of appellant, and defendant below, Fred A. Fischer. The fourth paragraph of his will is in these words:
“All the rest and residue of my estate so remaining after the death of my said wife, I give, devise and bequeath in equal shares to my said daughter, Elizabeth Anna Fischer, and the two children of my deceased daughter, Elmer Lange and Norbert Lange, to have and to hold, to them, their heirs and assigns forever, excepting, however, that the sum of two hundred dollars shall be paid to Fred Lange, my son-in-law, before the division of said remaining estate shall take place.”
The fifth paragraph appointed testator’s wife executrix of his will “without any bond or inventory of my estate to be required of her by the Kenton county court,”
On November 24, 1917, this suit was filed in the Kenton circuit court by the grandchildren of testator (who are two of the devisees mentioned in the fourth paragraph of the will) Elmer H. Lange and Norbert Lange, who are the children of a deceased daughter, against the defendant Fred A. Fischer and his wife, Elizabeth Anna Fischer, seeking a settlement of the estate and the payment to them of their share of it under the will. Much evidence was taken and there were some three or more references to the master commissioner, who reported the condition of the defendant’s accounts as administrator with the will annexed, to which reports various exceptions were filed, and upon final submission the court rendered judgment charging the administrator with $4,151.98 as being the balance in his hands for distribution, and adjudged that he had overpaid his wife the defendant, Elizabeth A. Fischer, the sum of $1,323.72. It was further adjudged that there was a balance of $2,075.99 due each of the plaintiffs'and defendant was ordered to pay to each of them that sum less their part of the costs, and Mrs. Fischer was ordered to pay to the administrator the amount which she had- been overpaid, the costs being divided between the parties. From that judgment defendants, Fischer and wife, prosecute this appeal and plaintiffs moved for and obtained in this court a cross appeal.
The administrator makes a number of complaints ag'ainst the judgment on his appeal, among which are that he was not credited with a note of $1,000.00, which he borrowed in his fiduciary capacity from a bank directly after his appointment, and the interest paid thereon; that he was improperly charged with interest on accrued balances in his hands; that the judgment improperly allowed an attorney’s fee of $500.00 to plaintiffs’ attorney;
On the cross appeal the judgment is criticized because it failed to charge the administrator with $1,453.25, the amount of rents which he failed to collect from tenants occupying the two pieces of real estate owned by testator (one in Cincinnati, 0.,and the other in Covington, Ky.), other than his residence; that the court erroneously allowed the sum of $500.00 jointly to the administrator and •his attorney and failed to charge the administrator with the entire cost of this litigation.
The testator at the time . of his death. owned • three pieces of real estate, two located in -Covington, one of which was his residence, and another located in Cincinnati, Ohio. This property, outside of his residence, was in a very much dilapidated and run down condition; The Covington property rented' for only ten • dollars per month, when a tenant could be procured, and the most that the Cincinnati property ever rented "for was thirty-five dollars per month. At the time of the testator’s death he owned 104 shares of stock in a Cincinnati street railway company, of the par value of $100.00 per share, but worth only $50.00 per share. After Mrs. Rottinghaus qualified as executrix she obtained six other . shares of that stock which was issued to the estate which she represented. During her administration of the estate she made no settlements whatever, nor is there anything in the record to show what other property than that mentioned went into her hands. The only matter of record pertaining to .the ten years of her service is an affidavit which she filed in the county court and in which she stated that she had paid all of the debts of her decedent. Whether the testator had any money in bank or any notes or accounts due
Under these circumstances and conditions we do not think the' court erred in adjudging the six shares of street railway stock, acquired after the testator’s death as a part of his estate. Payment by appellant of the funeral expenses of the widow and the account of John H. Fischer Sons and the expense in taking care of the cemetery lot, and some other items which Mrs. Rottinghaus verbally directed her son-in-law to pay for mass celebrations, as we gather from the record, were paid out of the proceeds of the $1,000.00’note above mentioned, and we have examined the record in vain to find any legal ground upon which the appellant is entitled to credit therefor. They were debts either owed by, or for the exclusive benefit of Mrs. Rottinghaus, who, as we have seen, left no property in her name and, she being only a life tenant, such claims could not be a legal charge against the remaindermen or against the estate of which she was the personal representative. It is insisted, however, that plaintiffs are es-topped to contest these items since, as claimed, they by their silence and acquiescence consented for the plaintiff to pay them. We find no evidence in the record supporting this alleged estoppel. The plaintiffs were infants at the time, of comparatively tender years, and even if' they could be estopped by such conduct, as is relied on, there is nothing to show that any of the payments involved were made with any knowledge on their part and there is no foundation for this contention.
The record shows appellant to be mistaken in his contention that he was not allowed credit for the $200.00 devise to Fred Lange, and likewise mistaken when he says that the judgment charged him with compound interest
This brings us to the chief point in the case, which is the construction of paragraph four of the will. The appellant, in support of his contention that a per stirpes division should be made thereunder, relies on the cases of Lachland Heirs v. Downing’s Extrs., 11 B. Mon. 32; Bethel v. Major, 24 Ky. L. R. 398; Armstrong v. Crutchfield, 150 Ky. 643; White v. White, 168 Ky. 753, and cases referred to therein; while plaintiffs in support of an opposite contention, in favor of a per capita division rely upon the cases of Purnell v. Culbertson, 12 Bush 369; Kaufman v. Anderson, 31 Ky. L. R. 888; Justice v. Stringer, 160 Ky. 365; McFatridge v. Holzclaw, 94 Ky. 352; Hughes v. Hughes, 118 Ky. 756; Potts v. Shirley, 28 Ky. L. R. 872; and the Armstrong, and the White cases relied on by appellant. In the recent case of Prather v. Watson, 187 Ky. 709, the same question was presented as is involved on this appeal. In that opinion the cases relied on by both appellants and appellees, together with many others, are referred to and discussed. The rule was there laid down in accordance with the settled doctrine for the construction of wills that: “Where the subject of a testamentary disposition is directed to be ‘equally divided,’ or to be divided ‘ share and share alike, ’ or where similar words are used which indicate an equal division between or among two or more persons, the persons between or among whom the division is to be made take per capita, ‘unless a contrary intention is discoverable from the will.’ ” 40 Cyc. 1490. It was further therein held that where such words were used by the testator, and there was nothing within the will indicating a contrary intention, it would be presumed that the testator meant a per capita division, which would he ordered “unless a con