151 Ky. 398 | Ky. Ct. App. | 1913
Opinion of the Court by
Affirming.
Samuel Harding died in January, 1903. ‘His will, which was duly admitted to probate, is in these words:
“I, Samuel Harding, do make this, my last will and testament, written wholly by my -own hand, revoking all other wills made by me.
“Item first. I have in my hand® belonging to my wife thirteen thousand dollars in notes ¡and contracts showing indebtedness to me or her from -others, whether in my own name or her-s this is nevertheless the property ¡of my'wife to the extent ¡of thirteen thousand dollars, exclusive o-f some notes she holds in her possession, and I recognize this indebtedness to her with interest from this date, and it-is my will that my estate -guarantee and pay the whole sum as though it was a -debt -due from me to her as- indeed it is.
, “Item two. I give to my beloved wife, Lucy W. Harding, one-third of all the remainder of my -estate after my debts (including -the -above to her) are- paid absolutely and unconditionally, and I give the ¡remaining two-thirds to her for and during her natural lifetime, the remainder interest to go ais though I had died intestate to my brothers and -sisters -or their descendants ¡should I survive them.
“Item three. I appoint my wife, Lucy W. Harding, executrix of this, my will, and invest her with ful-1 power to sell and convey any and all -of -my real and personal-estate -as she may think best.
“In testimony -of all of which, witness my signature this 27th day of November, 1894.
‘ Samuel Harding. ’ ’
The wife declined to qualify as -executrix and J. L. Bruce was appointed administrator with the will1 annexed. He sold -a part of the land and the wife insisted that he had no power to ¡sell it. Her contention was sustained by the Circuit ¡Court, but on -appeal to this
Appellee has entered a motion to dismiss the appeal on the ground that all the matters complained of are res adjudicata; but this motion is based upon a misunderstanding of the decision in Harding v. Harding, 145 Ky., 315. In that opinion it is expressly shown that the only thing before the Court then was the correctness of the judgment of May 5, 1911, and that no appeal was then prosecuted from the judgment of April 30, 1910. As the correctness of that judgment was not before the Court on that appeal, the judgment there is not conclusive as to it, and the motion to dismiss the appeal now before us is not well taken.
It remains, therefore, to dispose of the appeal on the merits. By the will of Samuel Harding he directed the payment of a certain debt to his wife, and devised to her absolutely one-third of all the remainder of the estate after Ms debts were paid; the other two-thirds to go to her for life, and at her death to Ms heirs-at-law. He gave the administrator full power to- sell and convey all of the real and personal property as the administrator might deem best. The administrator sold all of the real estate; but in view of the condition of the
Upon the death of the decedent the title to all his personal property vested in his personal representative. Lucy W. Harding as a devisee under the will took only the remainder left after the payment of the debts, one-third going to her absolutely and two-thirds for life. She took no title to the personal estate. This vested in the personal representative and she was only entitled to the surplus left after the payment of the debts and. the cost of administration. The interest on the fund or the increase ds a part of the fund, and she was no more entitled to the interest than to the principal. (Cook v. Burton, 5 Bush, 67; Muldoon v. Crawford, 14 Bush, 132; 2 Woerner on Administration, Sec. 307; 18 Cyc. 172-174.)
Th/e testator, by his will, authorized the executor of the will to sell the real estate, and in view of the condition of the estate this1 was manifestly necessary. The rule is that where the land of the decedent has been sold to .pay debts under a power in the will the proceeds are assets in the hands of the executor, and are a trust fund held by •him for the payment of debts. (Grider v. Payne, 9 Dana, 191; Muldoon v. Crawford, 14 Bush, 132; Maret v. Robb, 91 Ky., 90; 11 Am. and Eng. Encyc. of Law, 84; 18 Cyc., 189). The proceeds of the .sale of the real estate being assets in the hands of the personal representative for the payment of debts, the interest follows the .principal, and is also assets in his hands. The widow was1 .only entitled to have absolutely one-third! of the surplus remaining after the .payment of the .debts and two-thirds of it for life.
'This disposes of all the matters complained of on the .appeal except the rent of the real estate. It appears from the record that she collected in round num
Lucy W. Harding objected to the order of May 1, 1909, and amoved the Court to set if aside. Tbe ground of this objection appears to have been that by that order tbe administrator was directed to turn over to her all the notes and claims due the estate, when sbe insisted that tbe administrator .should oolleat the assets and make a final settlement before be was discharged. On the bearing of this motion the judgment of April 30, 1910, was rendered and tbe administrator was directed to collect the assets, .and to report to tbe Court what were good and what were bad, so that there would be no dispute in tbe future as to the character of tbe assets turned over to her. It was incumbent upon her when sbe was insisting upon tbe correction of tbe order of May 1, 1909, to present to tbe Court all her grounds of complaint. She could not present some objections to tbe order and bold back others for future use, and sbe cannot complain of tbe judgment of tbe Circuit Court on account of objections which were not then presented to tbe Circuit Court. It is a familiar rule that this Court will not notice objections made for tbe first time on appeal. Tbe reason of tbe rule is obvious. The opposite course involves delay .and imposes costs tbat would otherwise be avoided. We therefore conclude tbat as tbis sum of $307 of rents wbicb was collected by the administrator and reported by him to tbe court, was paid out by him under tbe order of tbe Court on tbe debts and approved by tbe Court without objection by her, and a final judgment was thereafter rendered disposing of the entire estate without tbe matter being called to tbe attention of tbe Circuit Court by exception, of any sort, tbe objection cannot for tbe first time be made in this 'Court by appeal.
Judgment affirmed.