128 Ky. 239 | Ky. Ct. App. | 1908
Opinion of the Court by
Affirming.
In a suit brought by the Fidelity Trust Company in the Jefferson circuit court to settle the estate of Thomas Walsh, deceased, E. Y. and Moses Mandel became the purchasers of certain real estate. They filed exceptions to the report of sale upon three grounds: First, that there was a defect of title in the decedent; second, that the affidavit for a warning order was not made by the chief officer of the trust company; and, third, that under the act of 1906 the State had a lien upon the real estate of decedent to secure it in the amount of the inheritance tax due to the Commonwealth. The defect in the title complained of grows out of the following state of facts: On the 5th of September, 1859, William P. Calvert conveyed the property in question to Richard S. Herr, in trust -for the sole and separate use of his wife, Mary Elizabeth Calvert, during her lifetime, and, after her death, to her children, with this proviso:
Undoubtedly, when this property was conveyed by William P. Calvert in trust for the benefit of his wife, with the proviso that she might sell or dispose of it as she saw fit at any time during his life, he was intending to provide for his wife a home which she could not dispose of after his death, yet at the'same time he was enabling her to dispose of it, should she desire to do so, at any time during his life. He recognized that' she could not dispose of it without he joined with her in the deed, and that he would thus be given an opportunity to protect her and keep her from being imposed upon in its sale. The language used in the power given her is broad. She is authorized, not only to sell or dispose of the property, but she is further authorized to do so in any way that she wished, and, likewise, is' she given full power and authority to dispose of the proceeds realized from its sale as she wished. Under this power she had the absolute right to sell the property as she did, and her reasons for so doing are not Open to inquiry, since she was acting clearly within the power given her in the deed of trust. Granting that the contention of appellants is correct, that this deed which she and her husband made to Henrietta Goodall was made for the sole purpose of defeating the trust and investing her with the fee-simple title to the property in question, still it cannot be said that by so'doing' she was perpetrating a fraud upon the remaindermen, because
In passing upon the question of the right of one to exercise a power for his-own benefit, this court, in the case of Coats’ Ex’r v. L. & N. R. R. Company, 92 Ky. 263, 13 Ky. Law Rep. 557, 17 S. W. 564, said: “It is said by the appellant’s counsel that the power of disposition by Beulah Coats, the widow, was discretionary, and in transferring or conveying the estate intrusted to-her she could not lawfully delegate the exercise of this discretion to Hopkins. There was, in one sense, a trust by reason of this provision of the will, for so long as she held the property undisposed of it was for the benefit of those in remainder at her death, but, when selling the corpus of the estate, she was executing the power for her own benefit. • -If she had plenary power to sell and transfer this estate or any part of it not for those in remainder, but for her own- benefit, and did so either in person
We come next to a consideration of the second ground of exception, to-wit, that the affidavit for the warning order was not-signed by the chief officer of the company. Section 58 of the Code, which regulates the practice, so far as the appointment of warning attorneys is concerned, provides that the clerk shall not make the warning order until the plaintiff, or, if he be absent from the county, his agent or attorney, has made the necessary affidavit, and, if the affidavit is made by the agent or attorney, it must show the affiant’s connection with the plaintiff and his absence from the county. In the case- at bar the plaintiff is a corporation. It can only speak through its officer's. Had the affidavit been made by the president óf the company, it could not be said that it was made by the plaintiff, nor could it be said that it was made by the agent or attorney of the company, for the president is no more the agent of the company
On the question as to whether or not the State has a lien upon this property to secure it in the amount of the inheritance tax due from the estate of Thomas Walsh, deceased, we deem it necessary but to say that the proceeds arising from this sale either are now in court, or will be paid into court, and will in any event be subject to the order of the court. The lien of the State is against the property of the decedent, and will first be satisfied out of any personal estate left by him, and, if this sum is not sufficient, then the realty
"We are of opinion that upon the whole ease the record shows that the decedent was the owner of the fee-simple title to the property in question, that the proceedings seeking 'a sale of this' property were regular and in form, and that the trial court did not err in overruling the exceptions filed to the report of sale.
The judgment is affirmed.