Back's Guardian v. Bardo

• Decision Date: 06 May 1930
• Citation: 234 Ky. 211
• Parties: Back's Guardian et al. v. Bardo et al.
• Court: United States State Supreme Court — District of Kentucky

234 Ky. 211

Back's Guardian et al. v. Bardo et al.

Court of Appeals of Kentucky.

Decided May 6, 1930.

1. Judgment. — Since court had jurisdiction of subject matter and parties in proceeding to construct will and partition estate, judgment was obligatory on parties while remaining in force.

The executor named in the will had brought action to sell certain real estate in which testator had an undivided interest, and to construe the will and partition certain land. After judgment in the action, the estate was distributed and the executor filed his report of distribution and settlement, which was confirmed. If the court erred in construing the will, in the partition proceedings, or in the distribution of the estate, the only way to raise such question was by proper proceedings below, or by appeal.

2. Actions. — Action under Declaratory Judgment Act will not lie to determine propriety of judgment in prior action between same parties (Civil Code of Practice, sec. 745; Acts 1922, c. 83).

If action under Declaratory Judgment Act (Acts 1922, c. 83) would lie to determine validity of prior proceedings, it would result in ignoring prior judgment and in depriving parties of right of appeal within time prescribed by Civil Code of Practice, sec. 745. The act was not intended as a substitute for a new trial, appeal, or any other step that Code requires to be taken in same action.

Appeal from Campbell Circuit Court.

BARBOUR & BASSMANN for appellants.

MATT HEROLD, JOHN W. HEUVER and HUBBARD SCHWARTZ for appellees.

OPINION OF THE COURT BY JUDGE CLAY.

Reversing.

Peter N. Bardo, a resident of Campbell county, died March 19, 1923, leaving a will which was duly probated in the Campbell county court. Omitting the immaterial portions, the will reads as follows:

"Second: I devise and bequeath to my sister, Elizabeth Pratt, the sum of one Thousand dollars ($1,000.00).

"Third: I devise and bequeath to my respective grandchildren, Mary Evelyn Wirthlin, the sum of Two thousand ($2,000.00) Dollars, to Edward Wirthlin, Jr., the sum of two thousand ($2,000.00) Dollars, to Jos. Humbrecht, Jr., the sum of One hundred dollars ($100.00) to Carl Humbrecht the sum of one hundred dollars ($100.00), to Joseph Back, Jr., the sum of Two thousand Dollars ($2,000.00), to Gertrude Back the sum of Two Thousand dollars ($2,000.00), and to Mary Frances Back the sum of two thousand ($2,000.00) Dollars, to be paid to them by my executors as they shall attain unto the age of twenty-one years respectively.

"Fourth: After the payment of the claims provided for in the first and second items, above enumerated, and suitable provision made for the payment of the respective sums designated to my grandchildren as these shall mature, I desire that all my remaining estate, real, personal and mixed shall be inventoried, appraised and divided into five (5) equal parts, one of these parts to be given to each of my living children to-wit: George Bardo, Peter N. Bardo, Jr., Thos. Bardo, Stella O'Neill and Alice Lux.

"Fifth: In the event of the death of any one of the legatees herein provided for such undistributed part of my estate shall revert to my estate for the benefit of my then living heirs to be equally distributed.

"Sixth: In making the distribution of my estate my executors shall select three (3) disinterested men to appraise all my estate real, personal and mixed, and the valuation placed by them, upon the property shall be binding upon all my children and grandchildren and shall be used by my executors in making the division, but it is my will and desire that my farm of 117 acres in Cold Springs, Campbell County, Kentucky, shall be assigned to my son, Thos Bardo, as part of his share of my estate. After the division is made my Executors by proper conveyance and transfers shall convey and transfer to each devisee the portion allowed to him or her, provided however that any shares to be held by them in trust, shall not be conveyed to transferred until the expiration of the time of said trust.

"Seventh: I nominate and appoint my two sons, George Bardo and Peter N. Bardo, Jr., as Executors of this Will and Testament and request that no bond be required of them either as executors or as trustees."

The testator left surviving one son, two daughters, and numerous grandchildren, the children of deceased children.

The will, though contested by certain grandchildren, was sustained, and no appeal has ever been prosecuted from the judgment.

Shortly thereafter George J. Bardo, as executor, and in his individual capacity, together with his wife, filed two actions in the Campbell circuit court; one to sell certain real estate in which the testator had an undivided interest, and the other for the construction of the will and the guidance of the court in the distribution of the estate. In the former action the land was sold and the proceeds distributed by the master commissioner. Later on George J. Bardo, as executor, and in his individual capacity, together with his wife, filed in the action for the construction of the will an amended petition asking the partition of certain lands in which the testator and Clem R. Fennell owned undivided interests. By the amendment all the testators, heirs and devisees were again brought before the court, either by personal or constructive service. Commissioners were appointed who divided the land, reported to the court, and, no exceptions having been filed, the report was confirmed by a nunc pro tunc order. Thereafter, the commissioner appointed by the court conveyed to the testator's estate and to Fennell, the other joint owner, the land allotted to each. Later on the court entered a judgment construing the will and holding that that portion of the estate devised and bequeathed to Peter N....