94 Ky. 304 | Ky. Ct. App. | 1893
DELIVERED THE OPINION OF THE COURT
Mary A. Trimble, executrix of the will of her husband, W. W. Trimble, who died in Kenton county, where said will was recorded, brought this action in the Harrison Circuit Court to recover of Lewis Lebus five thousand five hundred dollars, price of
It is stated in the petition the plaintiff tendered to defendant certificates of the stock in writing thereon assigned to him, but that the officers of said bank declining to make a transfer of the stock on its books, defendant refused to pay the price he had agreed to give for the stock or to accept the certificates thereof. Subsequently plaintiff filed an amended petition, making the devisees of W. W. Trimble and the Farmers’ National Bank of Cynthiana parties-defendant, and asking a specific performance of her contract with Lebus, and, to carry it out, that the bank be required to make the necessary transfer on its books.
Upon transfer of the action to tip Harrison Chancery Court, a special demurrer to jurisdiction of the court was filed by guardian of infant devisees of the testator, W. W.. Trimble, and also by the Farmers’ National Bank of Cynthiana. And this is an appeal from the judgment sustaining the demurrer and dismissing the action. Clause 5 of the will of W. W. Trimble, after reciting the various banks, stock of which he owned, including one hundred shares of the Farmers’ Bank of Cynthiana, proceeds as follows: “ My wife, Mary B. Trimble, I give the interest that may accrue on said bank stocks after my death as long as she lives, to do as she may please with.”
Clause thirteen of the will is as follows: ‘‘ I appoint my wife, Mary B. Trimble, executrix of this, my will, and request that no security be required of
It seems to us appellant was, by the will, invested with discretionary power to sell the stock of Farmers’ National Bank of Cynthiana, or of any other of those enumerated in clause 5 of the will; and in view of the fact alleged in her petition that bank had for two years or more prior to the sale to Lebus, failed to pay dividends, as it was accustomed to do before and for some time after death of the testator, it was the right of appellant, and manifestly intended by the testator, the stock in question should be sold, and the proceeds invested in other stocks paying dividends ; and as the action is transitory and not local, whether the remedy sought be for direct recovery of the purchase pripe, or for specific performance of the-contract of sale, we are also satisfied the Harrison circuit' and also the chancery court to which the action was transferred, had jurisdiction, and it was error to sustain the special demurrer.
It is, however, argued by counsel, and we suppose was assumed by the chancellor, that provisions of “An act prescribing duties of fiduciaries,”-approved. April 29, 1890, operated not only to deprive appellant of the discretionary power to sell the stock, but to< restrict jurisdiction to enforce a contract of sale to the chancery court of Kenton county where the will of the testator was probated and appellant was qualified as executrix. That part of said statute applicable to sale of stocks, bonds and other securities by a personal representative is as follows:
Wherefore the judgment is reversed, and cause remanded for proceedings consistent with this opinion.