Anspacher v. Utterback's Administrator
| Decision Date | 06 February 1934 |
| Citation | 252 Ky. 666 |
| Parties | Anspacher v. Utterback's Administrator et al. |
| Court | United States State Supreme Court — District of Kentucky |
2. Executors and Administrators. — Where deceased executor had exercised sole control over testator's estate and made no report or settlement of corpus, testator's aged widow held not prevented, by laches or estoppel, from claiming statutory preference as against general creditors of executor to extent of testator's personalty in executor's hands at executor's death, though widow, as executrix, allegedly permitted executor continuously to exercise exclusive control, especially where widow's conduct conformed to apparent intention of testator (Ky. Stats., sec. 3868).
Will evidenced testator's purpose, in nomination of the executor, to relieve his wife of burden of active administration of estate, liberalized duties of executor and executrix by directing that they qualify without bond and make no appraisement, inventory, report to, or settlement with, county court, and designated no period of time for completion of administration, and executor's continued possession of estate was by virtue of liberal provisions of will, intended for benefit of aged widow of testator during her life, and her act of permitting him continuously and exclusively to assume and exercise control of estate as if he were sole executor was in a sense carrying out will of testator.
3. Estoppel. — Estoppel proceeds from some act making it inequitable for person so acting to assert claim of ownership as against another even if there is no intention to surrender claim or give up ownership.
4. Equity. — "Laches" is unreasonable delay to do legal duty or is negligence by which another has been led into changing his condition as to property or right in question, making it inequitable to allow negligent party to be preferred in his legal right to the one misled.
5. Equity. — Laches is equitable doctrine, elements of which are short of estoppel, and time in which it may ripen is short of applicable period of limitations, while limitation is mere matter of time.
6. Estoppel. — Estoppel, like laches, is always question of fact to be determined by circumstances of each case.
7. Executors and Administrators. — Testator's devisees held entitled to preference as against general creditors of deceased executor to extent of personalty in executor's hands at executor's death, though executor had allegedly commingled estate with his funds with allegedly negligent ermission of coexecutrix (Ky. Stats., sec. 3868).
8. Payment. — Debtor has right to direct application of payments when making them.
9. Payment. — Where debtor did not direct application of payments, creditor had right to appropriate sums paid to whichever debt creditor desired, unless one of debts was not due, in which case it was creditor's duty to apply payment to due debt.
10. Payment. — Generally, where neither debtor nor creditor has applied payment made, court will make application to payment of the more precarious or older, if both debts are due.
11. Payment. — Where neither debtor nor creditor has applied the payment made, court, in making the application, should exercise sound discretion according to its notions of justice on equitable principles, so as to effectuate justice according to intrinsic equity of case.
12. Evidence. — It will not be presumed that executor violated duties and misapplied funds in his hands to payment of insurance and repairs of realty, especially where, at time, he had in his hands as agent of devisee sums belonging to devisee to satisfy such obligations.
13. Executors and Administrators. — Only the devisees had right to compel executor to make settlement, showing what was due, and limitation would commence to run from date of the settlement.
14. Executors and Administrators. — In determining due date of executor's obligation, personalty in his hands, belonging to decedent's estate, was unliquidated demand until settlement was made in accordance with law and, thereby, sum due the estate determined, and sum was not due the devisee until so determined.
15. Executors and Administrators. — Where deceased executor, in making payments to testator's widow, had not directed their application and widow did not specifically apply payments and no judicial settlement of testator's estate had been made, held, the court, as between testator's devisees and deceased executor's general creditors, should apply the payments to satisfaction of obligation for proceeds of realty held by executor as widow's agent, not to satisfaction of testator's estate in his hands as executor (Ky. Stats., sec. 3868).
16. Executors and Administrators. — In action for settlement of deceased executor's estate, executor's notes owed by him to his decedent, though in executor's possession at executor's death, were, in absence of contrary evidence, deemed paid and their proceeds regarded as cash in executor's hands, so as to require his estate to account therefor (Ky. Stats., sec. 3868).
17. Executors and Administrators. — Deceased executor's delay and laches in administering and distributing estate in his lifetime held to forfeit his right to commission (Ky. Stats., sec. 3883).
Appeal from McCracken Circuit Court.
NUNN & WALLER for appellant.
CHAS. C. GRASSHAM, L.B. ALEXANDER, A.E. BOYD and W.F. McMURRY, Jr., for appellees.
Reversing.
The decisive question in this case is the right of devisees, one of whom is also an executrix of a will, to a preference as to the other creditors of a deceased co-executor, under section 3868, Kentucky Statutes. J.C. Utterback, a resident of McCracken county, Ky., died intestate, owing debts aggregating $500,000, with an estate of the value from $25,000 to $30,000 available for the payment of his debts. Only the claim of Anspacher's estate grows out of a fiduciary relation. The widow of A.E. Anspacher, for his estate, asserts the right of the devisees under the will of her husband, to a preference under section 3868. He devised all of his property, real, personal, and mixed, of which he died possessed, to her for life, "with power to sell, convey, deed or conduct business with the estate, the same as her husband could do while he was living." And "at the death of my wife, what may be remaining in her hands be equally divided among my brothers and sisters; at their death their portion to go to their children." The effect of this language is to give a life estate to his wife and a gift over of the remainder to the testator's brothers and sisters and their children. Therefore we shall consider this case, not regarding the widow as the only devisee under the will. Wintuska v. Peart, 237 Ky. 666, 36 S. W. (2d) 50; Banzhoff v. Smith, 233 Ky. 737, 26 S.W. (2d) 1034; Blessing v. Johnston, 249 Ky. 777, 61 S.W. (2d) 635. Mrs. Anspacher and J.C. Utterback were nominated in the will as executors without bond, with direction that no appraisement or inventory be made of the estate. Utterback took possession of the entire estate and managed it as sole executor. He made no settlement with her or the county court. She was 65 years of age at the death of her husband; at this time she is 81. From time to time Utterback made payments to her, sufficient only to satisfy her frugal, simple needs. From March 11, 1916, to October 30, 1930, he prepared and signed reports showing his receipts and disbursements. He charged himself in no one of them with the corpus of the estate. At his death some of them were on file in the county clerk's office; others lodged in a remote section of the bank of which he was an officer; still others were found among the papers of Mrs. Anspacher. The estate in his hands was in a confused and uncertain condition. In an action to settle the estate of Utterback, the cause was referred to the master commissioner to audit the estate of Anspacher in the hands of Utterback as executor. The trial court, on fiscal hearing, fixed the value of the estate in his hands, as executor, at $33,314.08, the balance due on October 15, 1932. From this aggregate he deducted $5,600, the inventory value of 18 shares of City National Bank stock and 10 shares of City Savings Bank stock, leaving the balance due Anspacher's estate $27,714.08. In their briefs, Anspacher's estate and the administrator of the estate of Utterback agree that the finding of the trial court fixing the balance of Anspacher's estate at $27,714.08 is the correct balance in Utterback's hands at the time of the latter's death. In the brief of the administrator of Utterback it is written:
Certain of the creditors of Utterback dispute the correctness of the finding of the chancellor. Among other items, these creditors argue "there were three thousand dollars [$3,000.00] in the savings account in the Citizens' National Bank, which had been placed there by Utterback at the time the Citizens' National Bank closed, for which Utterback was given no credit." It is our view the finding of the chancellor is supported by the facts. We shall dispose of the questions presented, considering the total amount of the estate in the hands of Utterback at the time of his death, as follows:
Receipts
Personal Property Inventory ................ $21,514.24
Personal Property
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