Cochran v. Lee's Adm'r

• Decision Date: 11 January 1905
• Citation: 84 S.W. 337
• Parties: COCHRAN et al. v. LEE'S ADM'R et al.
• Court: Kentucky Court of Appeals

84 S.W. 337

COCHRAN et al. v. LEE'S ADM'R et al.

Court of Appeals of Kentucky.

January 11, 1905

Appeal from Circuit Court, Jefferson County, Chancery Division.

"Not to be officially reported."

Action by Belle Lee Cochran and others against the administrator of Belle B. Lee. From the judgment rendered, the guardian of infants appeals. Reversed.

Loraine Mix and R. L. Page, for appellants.

McDermott & Ray, for appellees.

HOBSON C.J.

Mrs Belle B. Lee died a resident of Jefferson county in November 1903, having an estate worth about $38,000. She owned real estate worth about $6,000, and the balance of the property consisted of stocks and bonds. She left surviving her four children--a so, Wm. B. Lee., who was unmarried; two daughters, Margaret Cochran and Anna Belle Young, each of whom was married, and had three children; and a son, Philip Lee, who was married and had one child. The property which she had was received by her from her father, James Bridgeford, and was held in trust for her by the Fidelity Trust Company of Louisville under the terms of her father's will, which, so far as material, is as follows "The net annual income from the part allotted to Mrs Lee shall be, during each year during her natural life, paid to her for her sole and separate use free from any interest therein or control thereof by any husband that she may have. At her death, if she should die intestate leaving issue surviving her, the said fund shall pass and belong to her descendants,--they taking per stirpes: if she should die intestate and without issue surviving her the said fund shall go to and be equally distributed among my then surviving descendants,--they taking per stirpes: but said Belle shall have power to dispose of said estate by last will and testament."

On April 3, 1902, Mrs. Lee wrote with her own hand her will, which was admitted to probate after her death, and is in these words: "I bequeath to my four children, Margaret, Annabel, William and Philip the estate left me by my father to be equally divided among them and to be kept in trust by the Fidelity Trust Company, or any other trust company they may prefer. If any of my children die without issue of their body, his or her portion shall revert to my estate for the benefit of the living heirs. I wish my children to be allowed the privilege of conferring with the trust company in regard to their estate and to receive a statement of their affairs whenever they desire it. Signed by my own hand. Belle B. Lee. April 3, 1902. State of Kentucky."

The four children claim that they take under the will the property devised to them in fee simple, and that the words "die without issue of their body" refer to a death in the lifetime of the testarix. The guardian for the infants, however, maintains that they take under the will only a defeasible fee, which will be defeated by their death at any time without issue of their body. The circuit court held that they took in fee simple, and the guardian appeals for the infants.

The deposition of John T. Malone, an officer of the Fidelity Trust Company, which was the trustee under the father's will, was taken, in which he testified that Mrs. Lee told him that, if she ever made a will, she would never tie her...