Cowherd v. Kitchen

• Decision Date: 19 January 1899
• Citation: 57 Neb. 426,77 N.W. 1107
• Parties: COWHERD ET AL. v. KITCHEN ET AL.
• Court: Nebraska Supreme Court

57 Neb. 426

77 N.W. 1107

COWHERD ET AL.

v.KITCHEN ET AL.

Supreme Court of Nebraska.

Jan. 19, 1899.

Syllabus by the Court.

1. A testator made certain specific bequests in money, providing that the same should be paid by the executor, in his discretion, either in cash, or in shares in the capital stock of the Kitchen Bros. Hotel Company at their par value, or part in cash and part in such shares of stock at their par value; having regard to the condition of the estate and the circumstances of the legatees, or any of them. The rest and residue of the estate was bequeathed to J. B. K., stipulating in the will that “the said J. B. K. out of said residue of my estate to pay all the indebtedness of the Kitchen Brothers Hotel Company, including a certain mortgage for $90,000.00.” Held, the executor had the right to pay the specific bequests in stock at its face value, in lieu of cash, and that the duty was not placed on the executor,but upon the residuary legatee, to pay the indebtedness and mortgage of said company.

2. The residuum passed to the residuary legatee charged with the payment of such indebtedness and mortgage.

3. Whether the residuary legatee became personally liable for said mortgage debt by procuring an extension of time of its payment, or by the acceptance of the bequest, is not decided.

4. The final account of an executor should not be approved, and he be discharged, until the trust has been fully executed.

5. One cannot prosecute an appeal from an order discharging an executor, where he is not prejudiced by the decision.

Appeal from district court, Douglas county; Ambrose, Judge.

Bill by Jessie L. Cowherd and Charles Kitchen, Jr., against James B. Kitchen and others. Decree for defendants, and plaintiffs appeal. Affirmed.

H. J. Davis and Kennedy & Learned, for appellants.

George E. Pritchett and John C. Cowin, for appellees.

NORVAL, J.

Richard Kitchen and his brother James B. Kitchen were the equal owners on November 20, 1889, of the entire capital stock in the Kitchen Bros. Hotel Company, consisting of 500 shares, each of the par value of $1,000. The Paxton Hotel property, in the city of Omaha, constituted the assets of the company. On that day Richard Kitchen executed his last will and testament, which contained, among others, the following provisions: “Ninth. I give and bequeath to my brother Charles W. Kitchen, of Leadville, Colorado, twenty-five thousand dollars ($25,000). Tenth. I give and bequeath to each of his sons, my nephews Ralph Kitchen and Charles W. Kitchen, Junior, five thousand dollars ($5,000); and to my niece, his daughter, Jessie Cowherd, wife of W. S. Cowherd, of Kansas City, Missouri, five thousand dollars ($5,000). * * * Any or all of said legacies described in paragraphs of this will numbered second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth may be paid by my executor, in his discretion, either in cash, or in shares in the capital stock of the Kitchen Brothers Hotel Company at their par value, or part in cash and part in such shares of stock at their par value; having regard to the condition of my estate and the circumstances of the legatees, or any of them. Said legacies shall be paid, as soon as it can be properly done without embarrassment to my estate, within three years after my death. My executor is hereby duly authorized to assign and transfer, or cause or authorize the transfer of, any of my shares in the capital stock of said company, to carry out the provisions of this will. * * * Lastly. I give, devise, and bequeath to my brother James B. Kitchen all of the rest, residue, and remainder of my estate, of every name and nature, real and personal; the said James B. Kitchen out of said residue of my estate to pay all the indebtedness of the Kitchen Brothers Hotel Company, including that certain mortgage for ninety thousand ($90,000.00) dollars held by George Warren Smith upon lots one (1) and two (2), block 138, in the city of Omaha. In case of the death of said James B. Kitchen before my decease, the rest, remainder, and residue of my estate shall be disposed of as follows: First, for the payment and satisfaction of all debts and liabilities, of every name and nature, of the Kitchen Brothers Hotel Company, including the said mortgage to George Warren Smith for ninety thousand dollars ($90,000.00), and all taxes, assessments, or other incumbrances upon its property; second, the residue, after satisfying said indebtedness and liabilities, shall be divided equally, share and share alike, among all the other legatees in the will named who shall survive me. I hereby constitute and appoint my brother James B. Kitchen to be the executor of this, my last will and testament; no official bond as such, or other bond, to be required of him. In case of his death before my decease, or before the final settlement of my estate, then said Ralph Kitchen to be such executor; no official bond as such, or other bonds, to be required of him.” On June 27, 1890, the testator died. His said will was duly admitted to probate in the county court of Douglas county, and James B. Kitchen qualified as executor, and entered upon the performance of the duties of his trust. The assets belonging to the estate, and which came into the hand of the executor, consisted of a farm, two diamond shirt studs, and the 250 shares of stock in the Kitchen Bros. Hotel Company. At the time of the death of the testator the mortgage of $90,000 upon the property of the company, mentioned in the will, remained unpaid. The indebtedness secured by said mortgage was not to become due until 1896, and prior to the maturity thereof an extension of the time of payment for the period of 10 years was obtained by the directors of the Kitchen Bros. Hotel Company, at the instance of James B. Kitchen; and as yet said mortgage has not been paid. The diamonds and farm were distributed according to the provisions of the will. The executor also determined and elected to pay the legatees the amount of their several bequests in the shares of stock of the Kitchen Bros. Hotel Company, at the par value thereof, in lieu of cash, as the will permitted him so to do. He accordingly, within three years from the death of the testator, delivered to each legatee, excepting certain minors, the requisite number of shares of said stock, which at their face value equaled the amount of his or her legacy, although two of them (Jessie L. Cowherd and Charles Kitchen, Jr.) declined to receipt in full therefor. Certain minors, whose bequests aggregated $25,000, have been paid nothing under the will. The executor on February 26, 1894, filed in the county court his final account, accompanied by a petition for final settlement and discharge. In said account it was stated, in effect, that there were in the hands of the executor, belonging to the legatees to whom distribution had not been made on account of their being minors, 25 shares of stock in the Kitchen Bros. Hotel Company, of the par value of $25,000, and a “balance on hand, going to residuary legatee, 137 shares, at par, $137,000.” Subsequently said Jessie L. Cowherd and Charles Kitchen, Jr., legatees named in the tenth paragraph of the will, filed objections to the allowance of the final report or account of the executor and to his discharge, alleging, in substance and effect, that the residuary bequest was by the will charged with the payment of said mortgage, and was made upon the express condition that James B. Kitchen out of the residuum should pay all the indebtedness of the Kitchen Bros. Hotel Company, including said mortgage; that the same had not been paid, but, on the contrary, James B. Kitchen, as executor, and as the owner of one-half of the shares of stock of said company, in 1893 procured an extension of the time of payment of said mortgage until the year 1906; that after such extension he sent to the objecting legatees, each, 5 shares of stock in said company as payment of their legacies under the will; that they, upon receipt thereof, objected to the satisfaction of the legacies in that manner, for the reason that the indebtedness of the...