Barret v. Gwyn

• Decision Date: 04 October 1905
• Citation: 88 S.W. 1096
• Parties: BARRET et al. v. GWYN et al.
• Court: Kentucky Court of Appeals

88 S.W. 1096

BARRET et al. v. GWYN et al.

Court of Appeals of Kentucky.

October 4, 1905

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

"Not to be officially reported."

Action by Henry W. Barret and others against Hugh G. Gwyn and others. From a judgment for defendants, plaintiffs appeal. Reversed.

Alex G Barrett and R. H. Blain, for appellants.

Nathan J. Kahn, Chas. F. Taylor, and Guy H. Herdman, for appellees.

HOBSON C.J.

James Garvin died, a resident of Louisville, about the year 1859 the owner of a considerable estate. He had no children, and left a will by which he devised his entire estate to his executors, in trust for his two brothers, Samuel and William Garvin, five sisters, and the children of a deceased sister to each one-eighth. William Garvin's share was left to him absolutely, but the shares of the other brother and the sisters were to be held by the executors during their lives, the income to be paid to them, and at their death the principal to be paid to their children, or, if any of them died without children or descendants, to the remaining brothers and sisters or their issue. The will also directed that the executors, as soon as in their judgment it was practicable to make a proper and judicious division of the residue of the estate, should divide it into eight shares, and upon making the division they should pay the income of each part to the person entitled to receive it, and upon the death of the brother or sisters to pay over to the lawful issue of the decedent forthwith the portion set apart for the parent. He also directed that, as soon as the division was made, the portion assigned to the children of the dead sister should be paid to them. He appointed his friends, John Bell and Samuel Gwyn, executors of the will. Gwyn only qualified, and on April 30, 1861, filed his petition in the Louisville chancery court, asking a construction of the will and the direction of the court in the execution of his trust. Settlements were made by him from time to time with the commissioner. Finally, in March, 1865, it appeared that the executor had in his hands the sum of about $61,000, and thereupon the court entered a judgment construing the will, and directing the executor to pay over to William Garvin one-eighth of the sum in his hands, $7,625.19, and that he should pay the same amount to the children of the sister who was dead at the death of the testator, and also to the children of another sister who had since died. The order concludes with these words: "The other five-eights of said residuary estate the executor will still hold in trust in accordance with the provisions of the testator's will."

Later it was made to appear to the court that M. J. Brown, another sister, had died, and the executor paid to her children another one-eighth of the fund, leaving in his hands something over $30,500. He had continued to collect the assets of the estate, and it appeared that he had in his hands the sum of $7,240.80 since the division was made in 1865; and he was ordered to hold this general fund. He reported to the court, before he paid Mrs. Brown's share, that $38,125.89 was invested in a house and lot in Brooklyn, certain bank stock, and some notes of the heirs which he had taken. After this the executor became insolvent, and R. H. Blain was appointed, in the year 1875, as administrator with the will annexed. Blain found the house and lot in Brooklyn incumbered by tax liens, the bank stock pledged for the personal debts of Gwyn, and the general fund of $7,240.80, which remained in the hands of the executor undivided, had disappeared. Blain finally sold the house in Brooklyn for $6,000 or $7,000. He succeeded in getting $3,000 or $4,000 from the bank stock, and $3,000 or $4,000 from the heirs to whom money had been loaned, making the total of the estate in his hands about $16,000. The testator owned 33 surveys of land in Texas, of 320 acres each, on which there were also unpaid taxes, and perhaps some of the land had been sold for taxes. Blain paid off the taxes in Texas, and, as directed by the court, paid out the income on the estate in his hands, until he finally resigned and settled his accounts in the year 1880. D. M. Rodman was thereupon appointed as trustee in his stead, and received the estate which Blain had in his hands. Rodman remained trustee until about the year 1888, paying out the income to the heirs, and in 1888 he failed, and the Louisville Trust Company was then appointed trustee.

The chief thing that the trust company got from the estate in Rodman's hands was a piece of Louisville property which belonged to Thomas Kennedy, his surety, and is yet in the hands of the trust company. What this property is worth does not clearly appear from the record. During the administration of Blain some of the Texas lands were sold and some were also sold during the administration of Rodman. Quite a number of sales have been made by the trust company, so that now more than one-half of the land has been sold. One of the three sisters whose part of the estate was left in the executor's hands, Mrs. Kerr, died, a resident of Memphis, Tenn., about the year 1875, leaving an only son, John L. Kerr, who died shortly after his mother, intestate. At Mrs. Kerr's death, Blain, as trustee, held a note secured by a mortgage on property in Memphis amounting to $4,080. Under the order of the court Blain released the mortgage, and took Kerr's receipt for the amount of the debt as so much distributed to him from the estate. Nothing since has been paid to this interest. About the year 1880 (the exact date is not shown) Samuel Garvin died without issue. At his death Mrs. Barret and Mrs. Hunter were the only two sisters living, and the trustee seems to have paid them the entire income on the estate from that...