196 S.W.2d 473 | Ky. Ct. App. | 1946
Affirming in part, reversing in part.
Mrs. Kate Dunlap died in 1944; by her will, of date July 27, 1937, she provided for payment of just debts and funeral expenses. She had acquired under the will of her husband some $58,000 in personal property; this she bequeathed to kindred of her deceased husband. In the second clause, and by codicils, she made numerous specific monetary bequests to relatives, friends, her church and charitable institutions, varying in sums from $50 to $5,000, totaling at a rough estimate $50,000, this representing all of her estate, except that acquired under her husband's will. She owned her residence and two other parcels of real estate; these were directed to be sold by her executor.
Among the specific bequests were $3,000 to a niece Clara Andrews; another to Mrs. Kate Donaldson, $3,000, to Mrs. Emmitt Waddell, $1,000, and Mrs. Ella Harp, $50. These last three bequests are subjected to controversy as are the bequests and other parts of the following residuary clause: "If my estate suffices, I wish all inheritance taxes upon the bequests made by this the second item of my will to be paid out of the estate so that each legatee, if possible, shall receive his or her bequest without any deduction on account of such taxes. Should my estate not prove sufficient to pay in full the bequests made by this the second item of this will, then the bequests shall be scaled down proportionately and in the event my estate should prove sufficient to pay all the bequests in full and all costs and charges of administration and all inheritance taxes mentioned, then any residue of my estate which may remain, I give and devise in equal shares to Mrs. Kate Donaldson, John McLeod, and George McLeod."
The executor in order to be advised as to his duties, and to have determined the rights of parties, sought declaration of rights. Civil Code of Practice Sec. 639a — 1 to Sec. 639a — 12. In his pleading, incorporating the will in full, he carefully set out all the facts with relation to status of the parties and the conflicting claims.
Clara Andrews, the niece, was, the sole heir at law of Mrs. Dunlap. Mrs. Donaldson, Mrs. Waddell and Mrs. Harp had predeceased testatrix and it is agreed *49 that their bequests lapsed. This presented to the executor the question as to whether lapsed legacies, as claimed by Clara Andrews, passed to her as undevised estate, or under the residuary clause to George McLeod, and the two children of John McLeod, who had predeceased testatrix. Mrs. Waddell and her husband had in 1936 adopted a son, James K. Waddell. He claimed the lapsed bequest to his adoptive mother. All claims were asserted in appropriate pleadings. In a separate paragraph, residuary legatees pleading in the alternative, ask that if the court should hold them not entitled to the lapsed bequests, but that they passed as undevised estate, then the executor should exhaust these bequests in the payment of debts, costs of administration and federal estate taxes, before any part of the residuary estate be used for any of the stated purposes.
Concretely the questions presented to the chancellor for declaration were: (1) Did the legacy to Mrs. Waddell pass to the adopted son or to Clara Andrews as undevised estate, or to the residuary legatees? (2) Did the legacies to Mrs. Donaldson, and specific legacy to Mrs. Harp pass as undevised estate, or under the residuary clause? (3) If the lapsed legacies passed to Clara Andrews, should payments of debts, administration costs and inheritance taxes be made primarily from such legacies, or should they be charged against the residuary estate?
Upon submission the chancellor held that the adopted son of Mrs. Waddell took nothing. This is not challenged here, and his ruling was in conformity with our recent decision in Copeland et al. v. State Bank and Trust Co., (In re Elliott's Will)
We note that in his judgment the chancellor recited that all debts of the testatrix had at that time been paid, and in expressing his opinion holding that the executor should not use any part of the lapsed legacies in payment of debts, costs of administration, said: "Before carving out these legacies which have lapsed, the testatrix provided for the payment of debts. She carefully specified how inheritance taxes and debts were to be paid," and provided: "If my estate suffices I wish all inheritance and estate taxes to be paid out of my estate, so that each legatee, if possible, shall receive his or her bequest c," and "in the event my estate shall be sufficient to pay all bequests in full and all costs and charges of administration, and all inheritance taxes mentioned, then c." The chancellor then said: "The legacies were not subject to payments of debts c. before they lapsed, because these had been provided for before the legacies were carved out. These when lapsed passed into intestate property in the same condition and subject to the same charges only as if they had not lapsed."
We cannot agree with the chancellor in his conclusion that the lapsed legacies should not be applied to the payment of debts, costs of administration and the taxes mentioned. The chancellor concluded that it did not appear to be the intention of the testator to subject lapsed legacies (which became intestate property) to the payment of these items. The lapsed devises came to the heir-at-law, not under the will but by operation of the statute, KRS
It seems clear from the will that Mrs. Dunlap desired her estate to pay all debts, taxes (named) and costs of administration. She directed a "scaling down proportionately" of bequests, in case her estate was insufficient to pay bequests, but what follows appears to us to be a direction to pay costs of administration, etc., from her estate, and the lapsed legacies as held by the chancellor, become a part of her estate upon the death of the legatees. The residuary, as set out in clause 2 of the will, cannot be used for these payments, because it is only after such payments that a residuary exists or arises. A residuary is that portion of the estate which is left after discharging all legal and testamentary claims, including bequests. Howe v. Howe's Ex'x et al,
There are few cases touching on the question of whether lapsed legacies should primarily bear the burden of debts of the testator and costs of administration, or it should fall in part on the residuary legacies. The general rule is laid down in 89 C. J. "Wills" sec. 2570; "While a testator may, by charging specific property with the payment of debts, exempt undisposed of property from such payment, his intention to do this must be very clearly manifested by the terms which he uses, for as a general rule, regardless of express directions to sell certain property and apply the proceeds to the payment of debts, or a bequest of property subjecting it, as against other property bequeathed, to the payment of debts, property undisposed of must first be resorted to for payment of testator's debts. * * * Lapsed legacies of the residue will first be applied before resort will be had to the residuary legacies effectually devised or bequeathed."
In 28 Rawle C. L. 300, the rule is stated to be that intestate property and property set aside by the testator to *52
pay his debts are first of all to be used to pay such debts. We approved that rule in Strode v. Strode,
Counsel for appellee, the heir-at-law, suggest that the Northcutt case was rested upon what this court concluded was the intention of the testatrix as observed from the will itself. The same is true here. The part applicable is that in which we found no manifested intention to exempt undisposed of property. We said above that the lapsed legacies fell back into the estate of testatrix. That such was and is the case is shown by codicils to the will. Certain specific legatees (other than the three mentioned above) had died prior to Mrs. Dunlap's death. In one case, and perhaps two, she redisposed of what she assumed to be a part of her estate, in one case to the heirs of decedent. She did not act in the three named cases, and whether it was her intention or not, the lapsed legacies upon the death of the legatee became part of her estate, which she could have disposed of but did not. We are of the opinion that the residuary legacies should not be primarily chargeable with costs of administration, debts or the taxes mentioned, and that the undevised estate including lapsed legacies, should be first applied to those purposes.
It is conceded that the three lapsed specific bequests passed as undevised property by reason of KRS
The language of the residuary clause is, after providing a contingency as to costs etc., "then any residue of my estate which may remain I give and devise in equal shares to Mrs. Kate Donaldson, John McLeod and George McLeod." It is not contended that the devise was to a class, but to joint tenants or tenants in common. Appellants in support of their claim cite several domestic and foreign cases. Morison v. Meade,
As we read the cases it is manifest that the court held the existence of cotenancy because all the legacies included real estate. In none of them does it appear that an effort was made to distinguish the character of the estate devised. Here, as is pointed out, the real property of testatrix was reduced to cash. The question arises as to whether or not cotenancy could exist in cash legacies, unless the intention to create such was manifested by the document creating the legacy. We do not mean to say that cotenancy could not exist as to personal property. The rule is that it may. See 14 Am. Jur. *54 "Cotenancy," 19, under which many cases so holding are cited. An examination of a few of these show that the relationship arose by contract, agreement or some specific writing which served to create the cotenancy. As exemplary, a joint bank account created with the understanding that either party might withdraw without consent of the other; again in case of the holders of receipts for grain deposited in a warehouse, and commingled with grain of the owner, and in a leasehold of mineral rights. All these reciprocal rights appear to have grown out of agreements or specific acts creating cotenancy.
Appellants apparently take the position that the residuary devise created the legatees tenants in common, perhaps distinguishing joint tenancy, which is an estate "held by two or more persons jointly with equal rights to share in its enjoyment during their lives, and having as its distinguishing feature the right of survivorship * * * by virtue of which the entire estate upon the death of any of the joint tenants goes to the survivors, and the last survivor who takes by inheritance. * * * Where a devise or bequest to two or more persons by name, in such form as to create a joint tenancy, and one of them dies before the testator * * * the whole interest vests in the survivors; one of the essentials is unity of interest; another unity of title." 14 Am. Jur. 6, 7. "A tenancy in common may be defined as that character of tenancy whereby two or more persons are entitled to land in such manner that they have undivided possession, by several freeholds. While the ordinary tenancy in common does not give the tenants the right of survivorship, it has been intimated that such right may be annexed to an estate in common if the intention to do so is clearly expressed. Unlike the joint tenancy, the tenancy in common is characterized by a single essential unity — that of possession or the right of possession, of the common property. If such unity exists, there is a tenancy in common irrespective of other unities, and if it does not exist, the estate is not a tenancy in common." 14 Am. Jur. "Cotenancy," sec. 14. Stambaugh v. Stambaugh,
The conclusion reached by the chancellor that the devises to the residuaries were "individual" is not with *55
out substantial authority. In Snellings v. Downer,
An exemplary case is Plummer v. Roberts,
We agree with what appears to be the majority rule, and it follows that we must hold, as did the chancellor, that the bequest to Mrs. Donaldson upon her death became a part of the undevised estate, and in this as well as with respect to the lapsed specific legacies, including that *56 to Mrs. Waddell, correctly declared the rights of the parties. In these respects the judgment is affirmed but reversed as to the allocation of costs primarily against the residuary estate.
Affirmed in part and reversed in part.
Judges Latimer and Dawson dissent from so much of the opinion as holds the residuary devisees not to be tenants in common.