Cecil v. Cecil's Ex'rs

• Decision Date: 14 May 1920
• Citation: 188 Ky. 700,223 S.W. 1092
• Parties: CECIL v. CECIL'S EX'RS ET AL. (TWO CASES).
• Court: Kentucky Court of Appeals

223 S.W. 1092

188 Ky. 700

CECIL v. CECIL'S EX'RS ET AL. (TWO CASES).

Court of Appeals of Kentucky.

May 14, 1920

Rehearing Denied Sept. 21, 1920.

Appeals from Circuit Court, Boyle County.

Actions by Bessie C. Anhier and others against Granville Cecil's executors, and by Granville Cecil's executors and trustees against James G. Cecil. From a judgment restoring James G. Cecil to possession of a farm, but denying him rents and profits during a receivership in the first action, and from a judgment appointing a receiver for the farm in the second action, said James G. Cecil appeals. Judgments reversed, and causes remanded for proceedings consistent with the opinion.

E. H Gaither, of Harrodsburg, for appellant.

Henry Jackson, Chas. H. & Nelson D. Rodes, Bagby & Huguely, and Chas. C. Fox, all of Danville, for appellees.

CLAY C.

These two appeals have been consolidated and will be considered in one opinion.

The first appeal mentioned in the caption is the second appeal of that case. The opinion on the former appeal may be found in 185 Ky. 787, 215 S.W. 794.

Granville Cecil died, a resident of Boyle county, in the month of March, 1916. He was survived by his widow, Emma Talbott Cecil, and three children, James G. Cecil, Bessie C. Anhier and Margaret Embry. Each of his children had living children some of whom were infants, and others adults. Besides an undivided half interest in a 100-acre tract of land near the city of Danville Granville Cecil owned about 1,200 acres of land in Boyle county, and personal property of the value of about $50,000. By his will he devised his estate to Charles P. Cecil, Sr., and C. C. Bagby, as executors and trustees, and vested them with a broad discretion in distributing the net income of the estate to his children during their lives. Upon the death of his children, their children were entitled to the remainder interest in the estate. Included in the estate devised was a farm of about 322 acres of land, known as Melrose. Of the income from this land, four-sevenths was to be paid to James G. Cecil, and three-sevenths to Mrs. Embry.

Upon the probate of the will and qualification of the executors a contest followed, which resulted in a verdict and judgment for contestants. On appeal the judgment was reversed and cause remanded for a new trial. Cecil's Ex'rs et al. v. Anhier et al., 176 Ky. 198, 195 S.W. 837. At the same time there were other suits pending involving the title to Melrose farm. In one Granville Cecil's widow was asserting dower. In another Margaret C. Embry and others were claiming to be the owners of the land in fee simple by virtue of the deed thereto under which their father held title, and by virtue of his will. In still another suit James G. Cecil claimed to be the owner of the farm by virtue of an alleged title bond executed to him by his father, and was also asserting certain liens and claims against the land.

When the testator died, his son, James G. Cecil, was in possession of Melrose farm. An agreed order was entered in the contest suit, placing that farm in the hands of a receiver. The order provided that at the end of the year 1916 the status of all parties and possession of all property should be restored as of the time of making the order. Upon the expiration of the time fixed in the agreed order, an order was entered continuing the receivership without the consent of James G. Cecil. This court held that, inasmuch as James G. Cecil did not consent to the order, and as no issue of receivership was presented in the pleadings, the court was without jurisdiction to make the order continuing the receivership, and the order was therefore void. The court further held that James G. Cecil should be permitted to resume possession of the farm.

On the return of the case, James G. Cecil filed the mandate of this court and moved the court for an order restoring the possession of Melrose, and requiring the receiver to account to him for the rents and profits accruing during the time he was deprived of possession. Judgment was rendered restoring Cecil to the possession of the farm, but denying him the rents and profits. Of the latter portion of the judgment Cecil complains.

James G. Cecil was in possession of Melrose when his father died. He agreed to the appointment of a receiver for a definite time,...