126 Ky. 704 | Ky. Ct. App. | 1907
Opinion op the Court by
Affirming.
James W. Wren died, testate, in the year 1890, at his domicile in Kenton county, Ky., leaving a widow, Virgina S. Wren, but wthout bodily heirs. By the terms of his will the testator devised his whole estate to his wife for life, and she was named as executrix of it.' Afterwards, the will was duly probated, and the appellee qualified as executrix. The appellee made a partial settlement of her accounts as executrix in the county court of Kenton county on the 12th day of January, 1893. She afterwards made a final settlement on the 31st day of December, 1895, and the balance remaining in her hands as executrix after the payment of the debts of the decedent she held as tenant for life under the will of her husband. When James W. Wren died, his father, Thomas S. Wren, was alive and resided in Montgomery county, Ky. Afterwards he died, leaving a will, of which the appellant, Lewis Apperson, was appointed and quali-. fied as executor. On the 25th day of August, 1906,, the appellant Apperson, as executor aforesaid, instituted this action in the Kenton circuit court for the purpose of surcharging the settlements of the appellee as executrix of her husband, in order to increase the amount of the estate of which his testator was remainderman. We cannot better state the claim of appellant than by borrowing the following lucid, statement from hi's brief: “This controversy affects only the personal estate, which was inventoried at about $16,000. On the 12th day of January, 1893,
The sole question involved on this appeal is the sufficiency of the plea of the 10 years’ statute of limitation as a bar to appellant’s right tO' surcharge the settlements of appellee as executrix of her husband’s estate. It must be observed that there is no claim in the petition that appellee, as life tenant, has wrongfully converted or diminished in any way the estate which came into her hands as such. The sole claim is that, as executrix, she made false and fraudulent settlements, paid her individual debts with her
The very principle we have here arose in the case of Blake v. Wolfe, 105 Ky. 380, 20 Ky. Law Rep. 1212, 49 S. W. 19, 50 S. W. 2. That was an action by wards against their guardian, and, in order to recover, it was necessary that they should surcharge his settlements made as guardian, and the question arose whether the 10 years’ statute of limitation barred the surcharging of the guardian’s settlements, and on this phase of the ease the court said: “But it appears from the record that the guardian made a settlement of his accounts on May 13, 1872, from which it was shown, that he had but little, if anything, in his hands. Appellees seek to surcharge this settlement in this action, filed more than 20 years after it was made, and more than 13 years after the youngest son was of age. The settlement, unless surcharged, is a protection to appellant. It remains therefore to inquire whether this petition was filed in time for that purpose. The statute provides: ‘In actions for relief for fraud or mistake, or damages for either, the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake; but no such action shall be brought ten years after the time of making the contract or the perpetration of the fraud.’ If the guardian made a mistake in his settlement, and credited himself hon
This action to surcharge the settlement of a fiduciary for fraud does not fall within the provision of section 2543, Ky. Stats. 1903, which is as follows: “The provisions of this chapter shall not apply in the case of a continuing and subsisting trust, nor to an action by a vendee of real property in possession thereof, to obtain a conveyance.” This statute applies only to such continuing trusts under which the trustee has the right to hold the estate, and the cestui que trust has no right to sue for it. Robinson v. Elam, 90 Ky. 300, 11 Ky. Law Rep. 307, 14 S. W. 84; Hargis v. Sewell, 87 Ky. 63, 9 Ky. Law Rep. 920,
Judgment affirmed.