167 Ky. 262 | Ky. Ct. App. | 1915
Opinion of the Court by
Affirming in part and reversing in part.
On April 26, 1899, Isaac H. Harris, who was then a resident of Jefferson county, Kentucky,- made and exe
“1st. After.payment of any just debts and funeral expenses, I give my beloved wife, C. Lillian Jones Harris, all the rest and residue of my estate of every character and description, this including all insurance policies I may have. (One Mutual Benefit of Newark, N. J., for $3,000.00, and one in Northwestern of Milwaukee, Wis., for $5,000.00.)
“2nd. However, should she, my beloved wife, marry again, she is to receive only one-half of my estate and the remaining half shall pass, tó my mother, brothers and sisters in equal shares. ’ ’
By the third clause he made disposition of his property in the event that he should survive his wife, and by the fourth clause he appointed her executrix of his will, and requested that she be permitted to qualify and act as such without being required to execute bond.
Some time in the early part of the year 1900, the exact, date not being disclosed by the record, the testator died, still a resident of Jefferson county, and on the 12th day of January, 1900, his will was.offered.for probate before the county court of that county and an order was entered duly probating same, and his widow, the appellant, Lillian J. Harris, was permitted to qualify as his executrix,and to take charge of his estate without the executing of a bond, as requested by him in the fourth clause thereof. So far as the record shows, the estate consisted of two life insurance policies upon the life of the decedent, aggregating $8,000, and twenty shares of the par value of one thousand dollars each in a commercial corporation, doing business in the city of Louisville, known as the Ox Breeches Manufacturing Company.
The two policies of insurance were collected by the executrix, and she assumed control over the entire twenty shares of the capital stock of the corporation mentioned. On May 31, 1902, she made her first settlement as such executrix, and she was charged therein with $28,000, being the amount of the insurance and the par value of the stock, and was credited by disbursements, for which she filed vouchers, to the amount of $8,855.61. She subsequently paid for, and on behalf of the estate, claims to the amount of $910.00, and on the 14th day of May, 1904, she made a second settlement with the county court, by which she was charged with the balance in her hands and
Some few years after the second settlement, the executrix sold and transferred to a man by the name of Summers, five shares of the capital stock in the Ox Breeches Manufacturing Company, which left in her hands only fifteen shares of the par value stated. All of the capital stock in the corporation mentioned had been previously transferred to herself individually by herself as executrix.
On the 23rd day of January, 1912, she entered into a contract with the appellant, Charles New, to sell to him the fifteen shares of the capital stock in the Ox Breeches Manufacturing Company for the sum of $29,982.73, but New refused to comply with that contract, and Mrs. Harris brought suit against him in the Jefferson Circuit' Court to recover the purchase price, except $1,000, which he had paid. This suit was compromised on November 11, 1913, by New agreeing to pay $27,000 for said stock and to secure the deferred payments by the pledge of it as collateral security. .Before this coifipromise agreement could be carried out, New claims to have discovered the terms of the will, and questioning the right of the appellant, Mrs. Lillian J. Harris, to convey to him the stock, another agreement was entered into between Mrs. Harris and himself of date of December 3, 1913, to the effect that appropriate proceedings might be instituted for the purpose of determining Mrs. Harris ’ power to sell the stock to him, and this suit was accordingly brought on March 5, 1914, by the appellant, Lillian J. Harris, against Charles New, in which she set out the facts hereinbefore stated, but in greater detail, and alleged therein that she had under her husband’s will, not only the power to sell and malee a good title to all of the stock, but that she is entitled under the will to the entire corpus of the property, and that the contingent remaindermen, mentioned in the second clause of the will, not only have no present interest in the property, but that they have no interest in any of it except what may remain, if any, at the time of the happening of the contingency of her marrying again.
As the cause progressed, by an appropriate order, the contingent remaindermen were ordered to be made parties, and they finally appeared in the cause and filed their answer. The answer of New is a traverse of the peti
It will at once be' seen that the questions for determination are: First, could the executrix, at the time she contracted to sell this stock to New, convey to him a good title? and second, what are her rights in the proceeds ? It will be observed that there is a difference between the right to sell, transfer and convey this property so as to give the purchaser a good title, and the right to proceeds of the sale after it has been made-. Mrs. Harris was something more than a joint owner in this property. She was the absolute owner of one-half of it, which, of course, gave her the right to absolute control and to
In the case of McKee v. McKee, 26 Ky., 739, this court had under consideration a question almost identical with the one in the instant case, except that the first taker did not have an absolute and unfettered estate in any portion of the fund, which in that .case was five thousand dollars. The right to convey the property was upheld in the following language:
“One bequeathed a defeasible estate is entitled to its possession, nothing to the contrary appearing in the will, and to its use as if he were given the fee simple, except that if he should consume it, or any- part of it, and then his estate be defeated by the occurrence of the condition imposed, he would be liable to the person next entitled, or if the property could be traced, the person who had got it, unless he were an innocent purchaser for value, in the case of personalty, would be' compelled to surrender. ’ ’
The authorities relied upon by «counsel for the contingent -remaindermen and New do not militate against these views, because, upon an examination of them, it will be found that in the cases referred to the first-taker of the property was not given by the instrument creating it the title to an absolute interest in any portion of it, and we do not gather from them that there was any question of the right of the first title holder to make a perfect title by sale. In none of them did the first-taker have title to any portion of the property unfettered by any defeasance, which differentiates them very materially according to the views we take, from the instant case. Moreover, in the character of property we are here dealing with, it being that character of property which is subject to be affected by varying business disturbances and the constant fluctuations of the market, the power and the right should be vested in some one to instantly sell and convey the property, if necessary, in order to avoid the depressing effects of such conditions, or the catastrophe of panics and other circumstances which might be imagined, affecting the vendible value of the property. We can not imagine a more appropriate person upon whom the law should confer this right than
As to the second proposition but little need be said. The cardinal rule of the law in the interpretation of wills is that the intention of the testator shall prevail. We cannot conceive of more simple and easily understood language as to the intention, of the testator than is used by him in this instance. The second clause of the will contains nothing that remotely points to an ambiguity, and there is no occasion to marshal to our aid any of the technical rules of interpretation in order to understand the testator’s meaning. He plainly gave to his wife this one-half of his estate in question, with the right, of eourse, to appropriate all of the income therefrom, subject, however, to be defeated should 'she again, marry.
In the settlement which the chancellor made of the accounts of the executrix we have come to the conclusion that he charged her with $1,765.61 too much. This seems to have occurred by accepting the figures stated in the amended answer of the remaindermen, filed on November 14, 1914, in which it is claimed that there is due the estate from the executrix, as such, the sum of $5,000, in