Cambron v. Pottinger

• Decision Date: 12 March 1946
• Citation: 301 Ky. 768,193 S.W.2d 412
• Parties: CAMBRON et al. v. POTTINGER et al. (two cases).
• Court: Kentucky Court of Appeals

193 S.W.2d 412

301 Ky. 768

CAMBRON et al. v. POTTINGER et al. (two cases).

Court of Appeals of Kentucky

March 12, 1946

Appeal from Circuit Court, Union County; M. L. Blackwell, Judge.

Consolidated suits by Joseph W. Cambron and others and by Tom Cambron and others against George Pottinger and others for interpretation of a will, two deeds, and a contract executed by W. T Wathen, since deceased, for sale of his property for final distribution of the proceeds of his estate, and for cancellation of such instruments. From a judgment ordering sale of the property and interpreting he will, deeds, and contract, plaintiffs appeal.

Affirmed.

Jos. W. Cambron, of Louisville, for appellants.

Harris & Drury, of Morganfield, and King & Flournoy, of Henderson for appellees.

SILER Justice.

Two suits were filed seeking interpretation of the will of W. T Wathen, deceased, and requesting a sale of his property for the purpose of a final distribution of the proceeds of his estate. One of these suits also sought interpretation of two deeds and a contract executed by the decedent, while the other suit sought cancellation of the same instruments.

The Chancellor consolidated the two suits, adjudged all necessary parties were before the court, ordered a sale of the decedent's property, interpreted the meaning of the decedent's will, deeds and contract to be that the decedent's own heirs should take one-half of his property and that his deceased wife's heirs should take the other half of his property, all heirs to take per stirpes after payment of debts, expenses and specific bequests.

From the Chancellor's judgment, part of the heirs of W. T. Wathen, that is the particular group represented by Joseph W. Cambron as appellant, now prosecute this appeal. Another part of W. T. Wathen's heirs, a group that entered the litigation by intervening petition, now concede that the Chancellor's judgment should be affirmed.

The appellants, the group of heirs taking issue, contend that the Chancellor's judgment was erroneous in (1) upholding the validity of the will and in (2) ordering a sale of the testator's property before final determination of the rights of all the parties in the Court of Appeals. More specifically, the appellants contend that the testator's will is void because (a) it is too vague and uncertain and (b) it is without meaning unless accompanied by parole evidence and (c) it is violative of the statute against perpetuities.

W. T. Wathen, when he was 81 years old and married to his third wife, entered into an arrangement with her by the terms of which they were to deed certain real estate to a Trustee in order that the Trustee might reconvey the same real estate back to W. T. Wathen and his wife, same to be thereafter held jointly and equally by them during life, with survivorship enjoyment to either of them during his or her surviving life and to include the right to fully use the property conveyed, even to the extent of consuming the whole of such property if it should become necessary for support, the surviving spouse to be the sole judge as to such necessity, such reconveyance from the Trustee to W. T. Wathen and his wife to further provide that one-half of the property, unexpended and remaining after the termination of the survivorship estate, should descend to the legal heirs of W. T. Wathen and the other one-half to descend to the heirs of his wife, each group of heirs to take in fee simple. Following out this arrangement, a deed from W. T. Wathen and his wife to their Trustee was made on the date of March 3, 1931, and likewise the reconveying deed was, on the same date, made from the Trustee to W. T. Wathen and his wife, and this latter instrument of reconveyance contained complete provisions in accord with the tenor of the prearranged plan mentioned above. Also, on the same date of March 3, 1931, W. T. Wathen and his wife made a written contract between themselves providing for present and future disposition of all their personal property, whether already acquired or to be acquired in the future, in the same manner as the real estate, which had already been disposed of by the trust conveyance and reconveyance mentioned above.

During the period of time subsequent to the conveyance, reconveyance and written contract, W. T. Wathen acquired in his own name certain other, additional property that was not included in the conveyance and reconveyance of March 3, 1931.

W. T. Wathen died on March 15, 1935, at the age of 85 years, and his widow died on November 8, 1944, at the age of 79 years. Neither W. T. Wathen nor any of his wives ever had any children by birth or adoption.

The will itself, which is dated February 16, 1934, and which was filed and probated as the last will of W. T. Wathen on April 1, 1935, in Union County Court, and which is now a subject of controversy in this litigation, follows:

'Feb. 16, 1934

'At my death I want all my debts paid first. I then assign to my wife Mame Pottenger Wathen, all my real and personal property. At her death I will to St. Annes Church $1,000.00 the remainder of the estate to be divided equally between my heirs and the heirs of my wife.

'W. T. Wathen, Sr.

'Signed Witness:

'(Mrs. T. A. Cullen)

'(Mrs. C. R. Smith)'

Appellants' first contention is that the Chancellor committed error in adjudging their decedent's will valid rather than totally invalid. It is to be observed that the present litigation is collateral to the original probate proceeding for the above will. Accordingly, the probate judgment rendered by Union County Court i...