| Ky. Ct. App. | Mar 5, 1920
Affirming in part and reversing in part on the original appeal, and affirming'in part and reversing in part on the cross appeal.
Adam Oster, a resident of Jefferson county, was killed on May 29, 1915. Besides his widow, Barbara Oster, he left surviving him one son, Otto J. Oster, two daughters, Elizabeth Dewald and Amelia Schmidt, and a granddaughter, Lillian Malinda Oster, the daughter of a deceased son, all of whom were the issue of a former marriage.
By the terms of his will, Adam Oster gave to his widow, a widow’s portion according to the law of Kentucky. He also bequeathed to his granddaughter the sum of $200.00 and to his son, Otto, the sum of $500.00. The remainder of his estate he devised to his son and two daughters in equal portions. His son was nominated and qualified as executor of the estate.
At the time of his death, the testator was the owner of personal property worth about $1,400.00, and two pieces of real estate, one on the corner of Ballard and Campbell streets in Louisville worth about $1,600.00, and the other on Market street in that city worth about $5,000.00. Besides an accident policy for the sum of $1,000.00, he carried certain benefit certificates which will hereafter be referred to. The claims against the estate, including funeral expenses, amounted to $1,132.11. Among the claims was a note of $200.00 to the widow dated November 9, 1912, and bearing interest from date until paid.
At the time of his death the testator and his wife were occupying the Market street property, and thereafter his widow continued to occupy the property until the month of March, 1916.
On March 21, 1916, the widow renounced the will in the manner provided by law.
Being unable to secure from the executor her dowable and distributable share of her husband’s estate, the widow brought suit under section 428 of the Civil Code, against the executor and all parties in interest, for a settlement of the estate. Thereafter, she filed a reformed petition setting up her interest in the estate, and asked that the real property be sold, both on the ground that the personal estate left, by the testator was insufficient
The grounds urged for reversal on the original appeal will be considered in their order.
(1) Since the husband may consume or dispose of all his personal estate without the consent of his wife, it necessarily follows that the wife has no vested estate in the personal property of her husband. That being true, no contract rights are involved and the legislature has plenary power to prescribe what portion of the husband’s personal estate «ball be exempted to the widow. Hence, the widow’s exemption rights in personal property are controlled by the law in force at the time of her husband’s death, and not by the law in force at the time of her marriage^. Under the present statute, which was in force when Adam Oster died, his widow, there being no infant children, was entitled to money or other personal property of the value of $750.00, and this statute applies where the widow renounces the provisions of the will in the time prescribed by law. Kentucky Statutes, section 1403, subsection 5. Since the executor had on hand a sufficient amount of money to pay the widow’s exemption, but failed to do so, it was proper to render judgment against the executor for the sum of $750.00. However, the estate is not properly chargeable with interest on this amount. If the case is one where interest should be charged, it should go against the executor individually. We may further add that if the executor has used the exempted property for the purpose of paying debts, the widow’s judgment is not collectible out of the real estate of her husband, but is a personal liability of the executor, who, upon a sale of the real estate, will be subrogated to the rights of the creditors whose debts ho paid. Franzell’s Exor. v. Franzell, 153 Ky. 171" court="Ky. Ct. App." date_filed="1913-03-28" href="https://app.midpage.ai/document/franzells-v-franzell-7140568?utm_source=webapp" opinion_id="7140568">153 Ky. 171, 154 S. W. 912.
(3) A careful review of the evidence convinces us that the charge of waste made against the widow was not sustained.
(4) At the time of his death, Adam Oster carried an accident policy in the Fidelity and Casualty Company, payable to his wife. After his death the proceeds were paid to Mrs. Oster. Otto Oster claimed the proceeds of this policy on the ground that he had been made the beneficiary. The evidence merely shows that Adam Oster directed that the change be'made when the policy expired. Adam Oster’s death took place before the policy expired and no change in the beneficiary was made. It necessarily follows that the policy was payable to Mrs. Oster, the original beneficiary.
(5) The evidence leaves no doubt that Adam Oster borrowed $200.00 from his. wife, and executed to her the note of November 9, 1912. It follows that the chancellor did not err in adjudging that the note was a valid claim against the estate.
(6) There is no merit in the contention that the widow could not maintain the action for the sale of the decedent’s real estate. In the first place the Code provides that a vested estate in real property may be sold by order of a court of equity, “if the estate shall have passed by devise or descent to the widow and heir or heirs of a decedent, and the widow shall have a life right in a portion thereof, either as homestead or dower or by devise, and the said property can not be divided without materially impairing its value or the value of the plaintiff’s interest therein.” Civil Code, sec. 490, subsection 3. In the next place the widow was a creditor of the decedent, and more than six months having elapsed since the qualification of the personal representative, she had the right to bring an action for the settlement of the estate, and for a sale of the real estate on the ground that the personal property was not sufficient to pay his debts. Civil Code, sections 428 and 429.
On the cross appeal numerous errors are assigned, which will be considered in the following order:
(1) While the husband is primarily liable for the physicians’ bills and burial expenses of his deceased wife, he is only liable where the medical services were rendered or her death took place during his lifetime. Here, Mrs. Oster died and the medical services were-rendered after Adam Oster’s death. 'It follows that there was no error in refusing to allow these claims against the estate of Adam Oster.
(2) The expense incurred for publishing cards of thanks in the Louisville newspapers and mailing them to friends was not a proper charge against the decedent’s estate. Such cards are published and mailed at the instance of the relatives of the deceased for the purpose of expressing their appreciation of the kindness and attention shown by sympathetic friends, and constitute no part of the funeral expenses.
(3) It is insisted that the estate should not have been charged with the expense incurred for lunch for those who participated in the wake over the remains of the decedent. It is customary with some to have a wake, with others, to have friends “sit up with the dead,” and since those who perform this service are required-to remain awake all night, it is likewise the custom to serve a lunch. Since they are present not merely to relieve the family, but to serve and protect the dead, it seems to us that any reasonable expense made necessary by their
(4) The next question is whether the item of $20.20 for carbon copy of depositions taken on behalf of the executor should have been allowed as a claim ag’ainst the estate. The carbon copy was furnished for the convenience of the executor, and no particular necessity therefor was shown. It seems to us that the executor had no power to burden the estate with such an extraordinary expense in the absence of a clear showing that it was necessary for him to have a carbon copy of the depositions in order that he might make proper defense. No such showing having been made, he should not have been credited with the item in question.
(5) It appears that the executor was allowed credit for $17.50 paid to a witness for appraising the decedent’s real estate, and giving his deposition. No such appraisement is authorized by statute, and the exigencies of the case not being such as to make such an appraisement necessary, we conclude that the claim should not have been allowed against the estate.
(6) The chancellor allowed a fee of $100.00 to the executor’s attorneys, Selligman & Selligman, and a fee of $300.00 to William McKee Duncan, another attorney. The allowances are challenged on the ground that the services were not in the interest of the estate and the fees were excessive. It seems to us that the allowances were both proper and reasonable. The executor was entitled to the advice of attorneys and to their services in resisting claims against the estate, and in seeking to recover claims in favor of the estate, and to this extent their services were for the benefit of the estate.
(7) The decedent, Adam Oster, was a member of four fraternal societies which paid certain benefits on the death of a deceased member in good standing. The amount paid by the United Brotherhood of Carpenters and Joiners of America was $300.00, by the Independent Order of Odd Fellows, $50.35, by the Working Men’s Association, $50.00-, and by the German Soldiers’ Society, $50.00. It was held by the chancellor that these sums
A motion has been made by the widow’s executors to have the costs of transcript No. 2 taxed against Otto J. Oster individually. It appears that counsel representing Otto J. Oster individually, and as executor of Adam Oster, agreed with the attorneys representing appellees as to what parts of the record should be copied for the appeal, and filed in the circuit clerk’s office an agreed .schedule setting forth the parts of the record to be copied
Affirmed in part and reversed in part on the original appeal, and affirmed in part and reversed in part on the cross appeal, and cause remanded for proceedings not inconsistent with this opinion. -