Bottom v. Fultz

• Citation: 124 Ky. 302,98 S.W. 1037
• Parties: BOTTOM v. FULTZ.
• Decision Date: 16 January 1907
• Court: Kentucky Court of Appeals

98 S.W. 1037

124 Ky. 302

BOTTOM v. FULTZ.

Court of Appeals of Kentucky.

January 16, 1907

Appeal from Circuit Court, Fayette County.

"To be officially reported."

Action by George Fultz against George C. Bottom. Judgment for plaintiff, and defendant appeals. Reversed.

Geo. B Kinkead, for appellant.

W Worthington, for appellee.

LASSING J.

L. D Bottom, wife of George C. Bottom, died March 10, 1903. On March 12th her will was admitted to probate in the Fayette county court, and on March 16th George Fultz, appellee, filed his suit in the Fayette circuit court on a return of no property on a former judgment against appellant, George C. Bottom, seeking to subject the interest of appellant in the estate of his wife to the payment of his judgment debts, and asking that appellant be required to elect whether he would take under the will of his wife, or take the interest given him by law in the estate of his wife, and asking for a construction of this will. Appellant demurred to this petition. His demurrer was overruled, and he declining to plead further, the court entered the following judgment: "It is adjudged by the court that defendant, Geo. C. Bottom, under the terms of the will of L. D. Bottom, deceased, took a life estate in all the property of every kind of said L. D. Bottom, deceased, with remainder over to defendants, Lillian De Bond and Firm K. Bottom, and that said estate for life so taken by defendant, Geo. C. Bottom, is subject to said defendant, Geo. C. Bottom's debts, and subject to this plaintiff's debt herein set up; that the clause in said will by which the testator, L. D. Bottom, deceased, sought to prevent said estate in the hands of defendant, Geo. C. Bottom, from becoming liable for his debts, and providing that in the event it should be held by a court of competent jurisdiction that said estate was subject to said defendant's debts, that then, in that event, said estate should at once pass to defendants, Lillian De Bond and Firm K. Bottom, is void and of no effect whatever."

The clause of the will of L. D. Bottom which is involved in this controversy is the third clause, and is as follows:

"Third. I give and bequeath to my husband, George C. Bottom, all my estate of every character and description, to be held by him in trust for my two children, Lillian de Bond and Firm K. Bottom. My said trustee is hereby empowered to continue to conduct in my name the saloon which is now being operated in my name so long as he deems it wise and desirable to do so, but he may at any time, in the exercise of his best judgment, sell and convey the same, and reinvest the proceeds in any manner that may seem best to him. My said trustee is hereby expressly empowered to invest the proceeds of the sale of my real estate, and such money, choses in action, or other securities, as I may own at the time of my death in any manner he may think best, but the income derived from my estate, I desire to be devoted to the maintenance and support of my said husband for and during his natural life. It is my wish that my husband, Geo. C. Bottom, shall confine himself solely and exclusively to the income derived from my estate, and in no wise encroach upon the principal for his maintenance and support. It is my wish and I do direct that no part of my property shall be encumbered by, or its rents and profits be in any way subjected to, the debts of my said husband, either by process of law or by any order, assignment or contract he may make, and should it at any time be held by a court of competent jurisdiction that said rents and profits are liable to be subjected to the debts of my said husband, Geo. C. Bottom, then, and in that event, I direct that all interest of my said husband in my estate shall instantly cease, and thereafter the rents and profits derived from my property shall be paid over to my two children, the said Lillian de Bond, and Firm K. Bottom."

Two questions are presented for consideration: First, can the appellant, at the instance of a creditor or any one else, be required to elect whether he will take under the will of his wife, or take the interest which the law would give him in the estate of his wife, and reject the will? and, second whether that portion of clause 3 of the will, which directs that, in the event it should be held by a court of competent jurisdiction, said estate is subject to the debts of appellant, said estate shall at once pass to the children of testator, is...