Taylor, &C., v. Minor, &C.

• Decision Date: 16 October 1890
• Parties: Taylor, &c., v. Minor, &c.
• Court: Kentucky Court of Appeals

Page 544

90 Ky. 544

Taylor, &c., v. Minor, &c.

Court of Appeals of Kentucky.

October 16, 1890.

APPEAL FROM MARION CIRCUIT COURT.

W. B. HARRISON FOR APPELLANTS.

SAMUEL AVRITT FOR APPELLEES.

CHIEF JUSTICE HOLT DELIVERED THE OPINION OF THE COURT.

Bannister Taylor died in 1876, leaving a paper, purporting to be his will, executed in 1844. It devised his estate to his widow, the appellant, E. W. Taylor, for life, or during her widowhood; disinherited his daughter, the appellee, Martha Minor, who had married J. C. Minor; provided that his widow, as his other children married or arrived at age, should give to each of them one thousand dollars as an advancement; but if any one of them married against her will, such child should have no part of his estate, and that upon the death of his widow or her re-marriage his estate should, save in the event above named, pass to his children, save Martha; but if they died without children, it was to pass to a certain educational institution, which was named in the will. It nominated two persons as executors, but they never qualified. He had but two children beside Martha, one of whom died before he did, and the other after, both leaving children.

Whether, therefore, the paper purporting to be his will was upheld or not, his estate passed to the same persons, saving a difference in the rights of the widow, and also if the writing were maintained as his will, the portions of the devisees under it were increased by Martha being disinherited. After being probated in the county court, Minor and wife assailed it, taking an appeal to the circuit court, where, after four mistrials, a finding was, upon a fifth trial, had against it. Upon an appeal to this court the judgment was affirmed.

During the pendency of the litigation the appellant, E. W. Taylor, was appointed curatrix of the estate, and when it ended she qualified as administratrix. As such representative she made a settlement in the county court of her accounts as curatrix, and while that settlement does not appear as a part of this record, yet she appears to have been credited in it with extraordinary costs or expenses incurred by her in the will litigation, such as moneys paid to an expert witness and lawyers' fees.

Minor and wife obtained a judgment in the will litigation for their ordinary cost, and collected it. Shortly after the ending of that litigation Minor and wife brought this action against the widow and other heirs, seeking to surcharge and correct the settlement made by Mrs. Taylor in the county court, and for a settlement and division of the estate. In it they also claimed reimbursement out of the estate for the extraordinary expenses they had incurred in the previous litigation. This included the fees of their attorneys; money paid to a distinguished physician as an expert witness; the cost of a continuance by them in that suit, and for which a judgment had been rendered therein; the charge of a person for taking down the evidence upon the various trials; also the amount of their personal expenses in attending to the litigation, such as hotel bills, &c.

Upon the other hand, the appellant, Mrs. Taylor, while she denied the right of Minor and wife to recover these claims out of the general estate, claimed that she was entitled out of it to the extraordinary costs she had incurred in the will litigation, such as her attorneys' fees and money paid by her to another expert witness. The case was referred to a commissioner, who reported in favor of allowing all these claims, and the court, by the judgments now complained of, allowed them all out of the estate, and both sides are now complaining, the one by an appeal and the other by a cross appeal.

The court also allowed an attorney's fee to each side in this case, to be paid out of the estate.

Various other grounds of complaint are presented by each side, but those above named are the ones mainly urged, and the most of the others will go unnoticed as unnecessary for out consideration.

It is claimed upon the side of the appellees that section 15, chapter 23, of the General Statutes, page 311, authorizes the allowance to them of their extraordinary expenses incurred in...