Cecil's Ex'rs v. Anhier

• Decision Date: 08 June 1917
• Citation: 195 S.W. 837,176 Ky. 198
• Parties: CECIL'S EX'RS v. ANHIER ET AL.
• Court: Kentucky Court of Appeals

195 S.W. 837

176 Ky. 198

CECIL'S EX'RS v. ANHIER ET AL.

Court of Appeals of Kentucky.

June 8, 1917

Appeal from Circuit Court, Boyle County.

Will contest between the executors of Granville Cecil, deceased proponents, and Bessie C. Anhier and others. From a decree that the will offered was not the last will of deceased, the executors appeal. Reversed.

Bagby &amp Huguely, C. C. Fox, Charles H. Rodes, and Henry Jackson, all of Danville, Claude D. Minor, of Perryville, Nelson D. Rodes of Danville, and Samuel M. Wilson, of Lexington, for appellants.

Robt. Harding, Robt. Quisenberry, John W. Rawlings, Geo. E. Stone P. H. Taylor, and Emmet Puryear, all of Danville, E. C. O'Rear, J. P. Hobson, and Charles Hobson, all of Frankfort, and A. S. Moore, of Lexington, for appellees.

SAMPSON J.

This appeal involves the validity of a will. In March, 1915, Granville Cecil, Sr., died, a resident of Boyle county, Ky. the owner and in possession of an estate, consisting of lands and personal property, of the estimated value of more than $200,000. He left surviving him a widow, Mrs. Emma Talbott Cecil, from whom he had been separated for many years, and three children--the oldest a son about 40 years of age, and two married daughters. At the time of his death, Granville Cecil, Sr., was about 65 years of age. After his death two papers appeared, one of date June 7, 1902, purporting to be his will, and the other, bearing date January 31, 1911, purporting to be a codicil to his will, and these instruments were offered for probate in the Boyle county court as the last will and testament of Cecil, and over the objection of the contestants in this case, were admitted to record.

Granville Cecil, Sr., was the son of James Granville Cecil, a young Virginian, who came across to Kentucky and settled in Wayne county in the early part of the nineteenth century. James Granville Cecil was a man of unusual parts, and in the course of his life, by industry, frugality, and the exercise of business sagacity, accumulated a large fortune, and was able to leave to each of his eight children property of the value of $72,000.

This entire estate came from his own efforts. Granville Cecil, Sr., started life with this fortune, which came from his father's estate. He was a strong, square-shouldered, heavy-built, robust, healthy man, jovial and happy. He had a host of friends, with whom he associated and was on familiar terms, often engaging in joking and other fun-making conversation. A farmer by occupation, he was largely engaged in stock raising, especially horse breeding. He was very prosperous and made money rapidly. His brother, Charles P. Cecil, was his partner in the stock business, and they were constant companions and associates from their boyhood until his death. All went well with the deceased until his wife, Emma Talbott Cecil, sued him for divorce in December, 1896. This appears to have broken his spirits and to have brought him much grief and trouble. Immediately after the institution of the action, Cecil set about to procure a reconciliation. His wife laid down the terms. She required him to sell off certain horses, join the church, and pay her $25,000 in a lump sum, and $1,000 annually during her natural life. He complied with each of these conditions, but she never returned to him. The daughters were associated more with their mother than their father, and therefore favored their mother in the family trouble and condemned their father. The youngest, Margaret, lived in the home with her mother several years before the daughter's marriage. The divorce proceedings were the beginning of Cecil's troubles. He lost weight and his health declined.

The will, of date June 7, 1902, is in words and figures as follows:

I, Granville Cecil, of Boyle county, Kentucky, do hereby make and publish this my last will and testament, hereby revoking any and all testamentary papers that may have been heretofore made by me.

First. I desire and direct all my just debts and funeral expenses to be promptly paid by my executors hereinafter named.

Second. Under a deed of settlement made between me and my wife, Emma T. Cecil, of date 7th day of Jan., 1897, and of record in the Boyle county clerk's office in Deed Book 25, page 118 to 123, my said wife has relinquished and released all right, title and interest in my entire estate and in addition she has deeded to me all her right, title and interest in and to the farm of some three hundred and twenty-two acres in Boyle county, Kentucky, known as Melrose. I desire my said settlement with my wife to be complied with strictly according to the terms of same in the same manner as if I were living, nothing more to be paid her than the settlement called for.

Third. I value my farm of about three hundred and twenty-two acres on the east side of the pike leading from Danville to Harrodsburg, and known as Melrose, at thirty thousand dollars ($30,000.00). By a deed of trust to C. P. Cecil of date June 7, 1902, I have made an advancement of eleven thousand one hundred and twenty-nine and 75/100 dollars ($11,129.75) to Bessie C. De Long, my daughter, in lieu of her share in the aforesaid farm, known as Melrose, to the extent of the sum so advanced. I therefore direct that my two other children, James Granville Cecil and Margaret W. Cecil, shall be exclusive beneficiaries in Melrose under the terms of this will to the extent of $11,129.75 each, so that said James Granville Cecil and Margaret W. Cecil shall be the exclusive beneficiaries of Melrose to the extent of $22,259.50, but my three children, Bessie C. De Long, James Granville Cecil and Margaret W. Cecil, shall be equal beneficiaries in the remaining value of Melrose, to wit, $7,740.50, and the net income of Melrose shall be apportioned to my said three children upon the basis above indicated. In all the rest and residue of my estate of every kind my said three children shall be equal beneficiaries upon the terms of this will.

Fourth. Acting under deed of gift from my father, James G. Cecil, to my sister, Sarah Cecil, I now appoint my brother, Charles P. Cecil, as trustee of Sarah Cecil in my name and stead.

Fifth. I direct my executors and trustees hereinafter named and appointed to close and settle the partnership between me and my brother, Charles P. Cecil, known under the firm name of G. & C. P. Cecil, as soon after my death as practicable. My brother, C. P. Cecil, shall have a perfect right to bid on any of the partnership stock when same is put up for sale and the fact that he is my executor shall not prevent him from bidding for and buying any of the stock he may see fit to purchase.

Sixth. My executors and trustees have the privilege of selling my undivided one-half interest in certain real estate in the town of Danville and adjacent to the lands owned by John Fogarty and others and used by G. & C. P. Cecil in our partnership business, at any time they think advisable so to do, and I hereby give them full power and authority to make sale of same and conveyance of same. No sale however is to be made of my Salt river farm in Boyle county, containing about 900 acres of land, nor of Melrose, until all of my children are dead, and if they or any of them leave children surviving them after all of my said children are dead then said two farms shall not be sold until my youngest grandchild reaches the age of 21 years.

Seventh. I hereby appoint my brother, Charles P. Cecil, and my friend, John W. Yerkes, executors and trustees of this will and now devise and bequeath to them my entire estate, real, personal and mixed, in possession, and remainder and reversion, and wherever situated, for the purpose and upon the trusts herein indicated.

I give them full power and authority to sell, convey, and reconvey at their discretion any real estate which I may own or which they may purchase, saving and excepting Melrose and the Salt river lands heretofore mentioned.

I give them full power and authority to sell, transfer and deliver any or all of my stocks, bonds, securities, and personal property of every kind, and full power and authority to invest and reinvest from time to time, the proceeds of such sales in other stocks, bonds, securities, lands, or improved real estate, situated in this state, or to loan same.

But at the expiration of ten years after my death my said executors and trustees are to make sale of all stocks, bonds and securities of every kind, and all personal property which they may hold under this trust at said time, and to collect all loans and to invest all of same in real estate in the county of Boyle or adjacent counties, with the privilege, however, to said trustees to sell and convey at any time any portion of the real estate so purchased by them, but the proceeds of sale to be reinvested in other real estate in said county of Boyle or other counties in Central Kentucky.

Whenever sales are made by my said trustees, the title shall pass, and the purchaser need not look to the application of the purchase money. It is my will and I give to my said trustees all power and authority, which may be necessary and proper to carry out the purpose and trust as herein indicated, and I do not desire that they be required to give bond with security either as executors or trustees, and my said executors and trustees are not to be responsible for any loss resulting to this estate, on account of accident, or error in judgment in any sales, purchases, investments or reinvestments, as herein provided.

My said executors and trustees are authorized and empowered and directed to manage this estate now bequeathed and devised to them in such way as may seem to them to redound to the best interests of my said children and their issues, and thereby grant to them ample and full...