Cecil v. Cecil

• Decision Date: 04 December 1914
• Citation: 161 Ky. 419,170 S.W. 973
• Parties: CECIL ET AL. v. CECIL ET AL.
• Court: Kentucky Court of Appeals

170 S.W. 973

161 Ky. 419

CECIL ET AL. v. CECIL ET AL.

Court of Appeals of Kentucky.

December 4, 1914

Appeal from Circuit Court, Hardin County.

Action by A. D. Cecil and others against Emma E. Cecil and another. From a judgment for plaintiffs, defendants appeal. Reversed and remanded, with directions.

Geo. K Holbert, of Elizabethtown, and O'Doherty & Yonts, of Louisville, for appellants.

H. L James, of Elizabethtown, for appellees Cecil.

L. A Faurest, of Elizabethtown, for appellees Kinkead.

TURNER J.

A. D Cecil, Sr., died on the 10th of September, 1906, a resident of Hardin county, having first made and published his last will and testament, dated just one week before his death. Thereafter his will was duly probated, and, as requested in the instrument, his widow qualified as executrix without the execution of bond. The will is as follows:

"I, A. D. Cecil, of the town of Cecilian, county of Hardin and state of Kentucky, being of sound mind and disposing memory, do make, publish and declare this to be my last will and testament, to wit:

First. All of my just debts and funeral expenses shall first be fully paid.

Second. I direct my executrix to deed lot No. 1 to Mrs. Kate Kinkead, lot No. 3 to Mrs. John Bullock, lot No. 4 to B. H. Cecil, lot No. 5 to H. A. Cecil, lot No. 6 to Emma Louise Cecil, lot No. 7 to A. D. Cecil, Jr., the two last-mentioned lots being and lying on same side of street as my home residence and just east of same. The other lots lying just across the street opposite the said home residence. All of said lots have been measured off and each of my beloved children know which lot is his or hers. My children not mentioned herein have deeds to their lots.

Third. I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, to my beloved wife, Emma E. Cecil, to have and to hold during her lifetime and to her heirs and assigns forever.

Fourth. I nominate and hereby appoint my beloved wife, Emma E. Cecil, my executrix and request the county court to permit her to qualify without giving any security.

Fifth. I hereby request my beloved wife, Emma E. Cecil, to carry out a verbal contract which I some time ago made with Bob Clark in a sale of 20 acres of land on which said Clark now lives, the contract being as follows: Bob Clark is to pay $500 for said land--$100 cash Jan. 1, 1907, and is to execute four notes of $100 on that date to run 1, 2, 3, 4 years and to draw interest at 6% from January 1, 1907, until paid, each note to retain a lien on said 20 acres of land."

The testator, in addition to the lots specifically devised in the second clause of his will, left some 400 or 500 acres of land and a small personal estate. The executrix immediately took charge of all the estate, both real and personal, and continued to hold and manage the same without filing an inventory of the personal property or making any settlement of her accounts as executrix until April, 1912, when this equitable action was filed by A. D. Cecil, Jr., and Kate Kinkead, two out of the seven surviving children of the decedent, asking for a construction of the will, charging waste by the sale of timber from the lands, asking for a settlement of the accounts of the executrix, and that she be enjoined from further waste. A joint answer was filed by the executrix and the remaining five children of the decedent, claiming that under the will the widow took the fee, and denying waste. In a judgment at the November term, 1912, the court construed the will to give to the widow only a life estate in the real and personal property, and the remainder in fee to her children, and thereafter at the August term, 1913, entered a judgment charging the executrix with $2,080.62 as the value of the personal property which came to her hands as such, and that she was entitled to a credit thereon of $785 for claims against the estate paid, leaving a net balance in her hands of $1,295.62, and required her to execute a bond with good security to the remainderman conditioned that the same would be forthcoming at the termination of her life estate therein, and also rendered a judgment against her for $1,187.13, the net value of timber sold from the land, and in addition enjoined Emma E. Cecil from cutting any other timber from the lands except such as was necessary for firewood and for the keeping up of improvements on the farm; and from these judgments the widow and five children have appealed.

The character of estate taken by the widow under the terms of this will is the chief question to be determined; it being the contention of appellants that she takes a fee-simple title, and of appellees that she takes only a life estate with a remainder to her children. Her children are also the children of the decedent, and at the time the will was drawn, and at the time of his death, she was more than 60 years of age.

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