132 Ky. 133 | Ky. Ct. App. | 1909
Opinion of the Court by
Reversing.
Samuel Harding died in January, 1903, leaving a will, in which he named' his wife, Lucy W. Harding, as executrix. The will was, in due time, probated, but his widow declined to qualify, and J. L. Bruce was appointed administrator with the will annexed. He proceeded to settle the estate, and in the course of time brought a suit for that purpose. In his suit for settlement, the administrator, among other things charged that he was advised that the widow was claiming large sums of money from the estate, and he asked tliat,she be required' to make out and prove her claims. Likewise that her brother, John G-. Weisiger, be required to prove and set up any claim which he was asserting against the estate. Thereafter the widow filed her answer, in which she claimed that her husband owed' her $13,000, with interest from November
In this report he allowed to the widow, Lucy W. Harding, as valid claims against the estate, the following : Thirteen thousand dollars, with interest to April 18, 1904, making $20,325.50; a claim of $10,470, with' interest to same date,- making $15,734.43, and $1,199.80, with interest to same date, amounting to $1,956.66. He also allowed to the widow her claim amounting to $3,270.69; this last claim being the guar
The case was submitted for judgment upon the pleadings, exhibits, commisisoner’s report, and exceptions filed thereto, and the court found in favor of the claimant, Lucy W. Harding, in the sum of $29,498.78, as of • September 27, 1906, subject to a credit of $6,803.36; this being the amount of the notes which she held in her hands as shown by her. answer, with the interest on said notes calculated to September 27, 1906. A judgment was accordingly entered in favor of Lucy W. Harding for said sum. It was further provided in the judgment that she might return the notes, above referred to, to the administrator on or before the 1st day of January, 1907, in which, event they would not be credited upon the judgment entered in her favor. The judgment also provided that if the claimant had collected any money on any of said notes, the sums so collected should be entered as a credit upon her claim. All of the exceptions filed to the depositions were overruled, except the exceptions to the deposition of the claimant relating to transactions between herself and her husband, and these were sustained. On proof heard the court fixed the allowance of the plaintiff, administrator-, at $3,500, and that of his attorney at $4,000, and he allowed the commissioner, for his services, the sum of $3,000. With the judgment and orders fixing the allowance of the commissioner, plaintiff, and his attorney, both, plaintiff and claimant,Lucy W. Harding, are dissatisfied, and they have each prayed, and been granted, an appeal to this court.
“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 hands belonging to my wife thirteen thousand dollars in notes and1 contracts shewing indebtedness to me or her from others, whether in my own name or hers this is nevertheless the property of my wife to the extent of thirteen thousand dollars, exclusive of 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 as though I had died intestate t.o 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 anj invest her with full 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.”
Some question has been raised over item 1 as to whether it is a legacy or merely the recognition of a debt to his wife by the testator. A legacy is defined by Webster to be a “gift by will of personal property, ’ ’ and this definition is substantially the same as
The will under consideration furnishes an admirable insight into the character of the testator. At the time- he married, all of his wife’s personal property, which he reduced to possession, became his absolutely. He and appellee were married in 1879, and from that time until the date of the will he had-the management and control of his wife’s property. She had sold a farm, for $7,500. This money had been turned over to him to be managed by him. She also owned certain bank stocks1, and the dividends declared upon this stock were regularly turned over to him for investment for his wife. All of this money had been reduced to his .possession. Just shortly before the execution of the will the Legislature had passed an act radically changing the rights of married women in regard to their property. The testator was evidently uncertain as to just what the rights of his wife under the law would be, and hence he so worded his will that there could be no uncertainty as to the capacity in which, he held her money; and also made such provision as would prevent his wife from having any trouble in securing her property in the event of his death. The record shows that he had managed his wife’s business, loaned her money; collected and reloaned it from the date of the marriage to the date of the will. He had received, during these years, from the sale of her land and from dividends upon the stock, $12,899.80 in the aggregate. That he managed
Appellee’s bank book shows that upon the date when the will was written she had in bank to her credit $23.80, and so far as the record shows this, together with the indebtedness and notes mentioned in the will, constituted all of her personal property, except her bank stock. Her husband continued to manage her business affairs after the will was written just as he had theretofore done, and during the years between November 27, 1894, and his death in 1903, he collected, on notes, accounts, contracts, interest and dividends on bank stocks, and deposited in bank to the credit of his wife $11,716.45. A part if this sum was necessarily represented by notes and contracts which formed a part of the $13,000 he held. During the same period he drew out of bank all of the money which was standing to his wife’s credit, excepting $16, and reinvested it in other notes and property for his wife, as the checks show upon their face the purposes to which the money was applied; and, while all of these
Appellee urges that she should be allowed credit for the checks to which we have referred as being drawn on her account by her husband since 1894, and amounting in the aggregate to $10,470.54. The checks themselves show what they were for, and appellee has been given the benefit of the purchasing power of each check by having the notes or contracts transferred to her, where the checks were for that purpose, or by receiving credit for taxes paid, etc. These checks are not evidence of indebtedness, but merely the evidence of various business transactions which appellee’s husband conducted for her as her agent. The testimony of appellee’s brother abundantly establishes this fact, if any proof was wanted or needed to support the evidence furnished- by the checks themselves. • Appellee has had the benefit of every transaction represented by these cheeks. Her husband collected and received her money for her, put it into the bank to her credit, and, when he found a suitable place to loan it again, or needed it to pay her taxes, or any other debt for
The evidence in this case took a wide scope', and there was some proof taken showing that the land -which appellee owned was used by her husband between the date of the execution of the will and his death, also that its reasonable rental valuei was so much per year during that time; the aggregate value of this rental, as fixed by the witnesses, being $1,000.
It appears that at some time during this period the turnpike roads in Boyle county were purchased by the county. Appellee owned some stock in one of them, and in the settlement of the transaction there was paid to her the sum of $90.21. Some claim is made that her husband’s estate should be chargeable with this sum, but an examination of the checks shows that -they were all made payable to her, and were indorsed by her. Presumably she received the money on them; and certainly the evidence- does not justify the claim that her husband’s estate should be made answerable for this sum. The claim that appellee is entitled to credit for the proceeds of a note amounting to $500, which was paid by her brother; John, can not be allowed, for the reason that the money for which this note was executed was a part of the original debt, or of the proceeds of some of the notes referred to in the will; and, having been charged in that item, his estate can not be made answerable for it again. On the question of the claim for taxes per
Having considered all of the claims made by the pleadings and the proof before the master, and all evidence of indebtedness brought out by the testimony and exhibits filed, we find that appellee is entitled to her claim of $13,000, with interest from the date of the will, to-wit, November 27, 1894, amounting to $22,230, calculating the interest to September 27, 1906. Also to the further claim of $1,199.80, with interest from the same date, and calculating this to September 27, 1906, amounting to $2,051.57. She is also entitled to the further sum of $3,063, this being th'e dividends accruing on her bank stock, during the years between 1894 and the death of her husband. We are aware that' appellee’s counsel admits that the claim for $2,051.57 should have a, credit which would reduce it to $1,422.65, but this admission is made on the mistaken idea and belief that appellee was entitled to be allowed her claim for the amount of the checks wMch- we have rejected. Her claim is to- be credited by the notes which she admits she had on hand, and wMch, according to the commissioner’s report and the judgment of the court, on September 27, 1906, to wMch date all interest' calculations are made, amounted to $6,803.36. Deducting this from her total claim of $27,344.57, there was due her a balance of $20,-541.21, as of date September 27, 1906. Her husband had guaranteed the payment of the. notes which she
Complaint is made that the allowance to the commissioner is excessive. Both appellant and appellee unite in this complaint. Appellee further contends that the allowances to the administrator and his attorney are excessive, while appellant and his counsel complain that they are not large enough. The allowances to the commissioner and the administrator are governed by statute, and the allowance to the attorney for his services, while not regulated by statute, is required to be reasonable. Section 1740 of the Kentucky Statutes of 1909 provides that a master commissioner shall, in the absence .of any special agreement with the parties, receive $3 per day for the time he is actually employed or engaged in the discharge of his duties. This provision is mandatory, and the court is without authority to exceed this limit. It is further provided in this section that the per centum which a commissioner shall receive for- collecting and disbursing money under, order of court shall be as follows: “Where the amount is more than one thousand, but does not exceed two thousand dollars, two- per cent, on the first thousand, and one and one-half per cent.
The compensation of the administrator is fixed by statute (section 3883) which is as follows: “The"allowance to executors, administrators and curators shall not exceed five per cent, on all the amounts received and distributed: Provided, That upon proof heard in open court, upon proper notice to the parties in interest, the court may make an allowance when the executor, administrator or curator has, in the proper discharge of his duties in attending to, administer-' and settling the estate in his hands, been required to perform extraordinary services; but such allowance shall not exceed in amount a fair compensation for the time occupied, and expenses incurred in protecting, attending to and settling such estate, and five per cent, on all amounts received and distributed.” The court was familiar with the character and extent’ of the services rendered by the administrator, but nevertheless he heard proof on the value of the services of the administrator to the estate, and, upon the proof so heard, fixed $3,500 as a fair compensation for the same, although the witnesses fixed a higher value. The record shows that the testator at the time of his death left his business, which was that of operating a planing mill and buildling houses, in a very tangled' and unsettled condition. Appellant was called upon to operate the mill for some three or four months, and finish nine houses which were under way at the time of the testator’s death. From 600 to. 800 persons were indebted to the testator, and thesé had to be settled
The judgment is reversed and remanded, with in