45 Ky. 35 | Ky. Ct. App. | 1845
delivered the opinion of the Court.
The questions presented for the determination of the Court, in this case, involves the construction of the following will of Fielding Christler, deceased.
“I, Fielding Christler, &c. do make and publish this as my last will and testament, viz: I will all my estate, both real, personal and mixed, in trust to my brother, Jesse Christler, and by him to be kept for the following purposes, to wit: 1st. That the farm upon which I now live, the Shirman place, and the hill land I bought of the Seatons, all my negro slaves except those heareafter named, my household furniture, and one half of my kitchen furniture, one half of my stock, corn, wheat, money, &c. to-be for the use and benefit of my wife Betsey, during her natural life. 2d. I will the farm I bought of Isaac Holt, my negro slaves Stephen, Peggy and Jane, one half of my stock, corn, wheat, &c. one half of my kitchen furniture, to be for the use and benefit of my daughter Nancy Noel. 3d. I will to my said trustee, my two lots in the City of Louisville, to be by him sold at any time he may think best, and one half of the money arising from the sale, to be given to my wife, to dispose of as she pleases, the other half to my daughter Nancy, to use as she pleases. And it is my will, that the propeity willed above to my brother Jesse, in trust as aforesaid, shall
The executor and trustee, also answered, praying a construction of the will, and says, that he had not sold the lots, because he had not thought it best to do so, owing to scarcity of money, and the low price they would
1st. As to the lots, as by the terms of the will, they were not to be sold until the trustee should think it best to sell them, and as he did not sell them during the life of the widow, thinking it not best to do so, they were not converted into personalty by the terms of the will, nor during her life, and her second husband and administrator, is not entitled to any interest in them. Real estate is converted into personalty, immediately on the death of the devisor, only where the direction to sell is positive, without limitation as to time, and without discretion on the part, of those to whom the power to sell is delegated. If discretion is given, as in the case before us, the convertion does not take place until the sale is made.
2d. Tire wife and daughter were entitled absolutely, in the shares and proportions directed by the will, to the corn, wheat, and other provisions, the use of which consisted in their consumption, and so far as such articles were sold by the trustee, they or their representatives are entitled to the principal and accruing interest on the amount produced by the sale.
3d. They are entitled to the use only for life, of the land, slaves, household and kitchen furniture, stock, money and debts, and they or their representatives are entilied only to the interest upon such of the perishable articles as were not taken and used by them, but were sold by the trustee and executor; and to the interest only upon the money and debts collected, Mountjoy and wife vs Lashbrook et al. (8 Dana, 33).
And as to the household and kitchen furniture, stock, and other articles of perishable property, taken by the widow, and for which receipts were given, and covenants to return or pay their then value, if the will required it, she had a right to their prudent use, and her representa tive is only to account for and deliver over to the trustee and executor, such articles of the original stock as remain unconsumed, or have not been worn out by the use, in the condition they were at her death.
The decree of the Chancery Court is therefore re vers