Donelson's Ex'r v. Coates

• Decision Date: 13 February 1945
• Parties: DONELSON'S EX'R v. COATES et al.
• Court: Kentucky Court of Appeals

186 S.W.2d 420

299 Ky. 608

DONELSON'S EX'R v. COATES et al.

Court of Appeals of Kentucky

February 13, 1945

Appeal from Circuit Court, Madison County; W. J. Baxter, Judge.

Action by Harry D. Rice, executor of the will of Zelia Donelson deceased, and as codevisee thereunder, and another, against Zelia R. Coates for a construction of the will and for a declaration of the rights of the parties. From an adverse judgment, named plaintiff appeals.

Reversed with direction.

J. P. Chenault and H. D. Parrish, both of Richmond for appellant.

John Noland and H. O. Porter, both of Richmond, for appellees.

REES Justice.

This appeal involves the construction of the will of Zelia Donelson who died January 21, 1941, a resident of Madison county. Zelia Donelson was the maternal aunt of appellant Harry D. Rice, and appellee, Zelia R. Coates. On August 24 1927, she executed her will, the pertinent parts of which read:

'Third: The residue of my estate of every kind and character, I give bequeath and devise to Harry D. Rice and Zelia R. Coates, equally.

'Fourth: It is my desire and I hereby direct that the part that I herein give, bequeach and devise to Harry D. Rice be free from any debts that he may have at the present or hereafter contract, and that in the event of his death without heirs, that the estate that I have herein willed him shall go to his sister Zelia R. Coates, if living, and if no living, to her descendants, exclusively.

'Fifth: I desire that the part of my estate which I have bequeathed to Harry D. Rice be held by a trustee to be named by him, that in the event he fails to nominate a trustee that the Judge of Madison County shall name one, and that that part of my estate which shall go to him be held in trust for his use and benefit until he arrives at the age of fifty years, and then be turned over to him with such accumulations as have not been disbursed for his use and benefit.

'Sixth: I make, nominate and appoint Z. T. Rice, (Brick) the executor of this my last will and testament, and in full confidence that he will carry out to the very best of his ability the provisions contained herein.

'Dated at Richmond, Kentucky, this 22 day of August, 1927.

'I also name A. T. Coates & Harry Rice

'(Signed) Zelia Donelson'

On September 10, 1932, she executed the following codicil to her will:

'Codicil--Lancaster, Ky. Sep. 5, 1932

'I hereby revoke section 4th & 5th of my will dated Aug. 22nd, 1927 and have the same as applies to Zelia Rice Coates--it is my most earnest desire that no checks or notes be counted against either, but what I have, at my death, be divided equally, as I have done my best to be just with each. I also want to add $1000.00 for Rachel Ford Coates, the same as I have given Tom Rice Coates--except I want each to have the interest paid yearly for their use.

'(Signed) Zelia Donelson'

On January 16, 1939, she executed this codicil:

'Codicil to my will dated Aug. 24th, 1927 I also desire and request that Rachel Ford Coates be given $1000.00 the same as Tom Rice Coates and it be handled in the same manner except--that the income on it, for both Tom Rice Coates and Rachel Ford Coates, be paid over to their Mother Zelia Rice Coates, to be used for their benefit.

'On the first page and under section sixth where I have added, 'I also name A. T. Coates and Harry Rice' I want it understood that this is to be construed as having them to act jointly with Z. T. Rice as executors.

'Under section fifth of my will where I specify the part of my estate which I have bequeathed to Harry D. Rice be held by a trustee &c, until he is fifty years old, I desire it sixty instead of fifty. Should he die before the age of sixty and have no children, I devise that part of the estate in trust for the share Harry D. Rice shall go at once to his sister Zelia Rice Coates. Should there not be sufficient amount left from my personal property after all expenses are paid to carry out my requests as to Tom Rice Coates & Rachel Ford Coates, then it is my will and desire that my real estate be required to take care of it. It is my desire that anything or money that I have advanced to either Harry D. Rice or Zelia Rice Coates be cancelled at my death whether secured by note or otherwise I desire that both my personal property and real estate be sold as soon as practicable after my death.

'Witness my signature this 16th day of January 16th, 1939.

'(Signed) Zelia Donelson'

The two codicils were in the handwriting of the testatrix.

Conceiving that the devise to him under the will and codicils was an absolute fee, Harry D. Rice brought an action in the Madison circuit court against his sister, Zelia R. Coates, in which he asked for a construction of the will and for a declaration of the rights of the parties. He sued as executor of the will of Zelia Donelson and as co-devisee. His coexecutor, Z. T Rice, was also a party to the action. The court adjudged that 'clauses No. 4 and No. 5 of said will were revived and modified by the last codicil of said will so as to impose a limited fee on the share of plaintiff, Harry D. Rice, the same to be held in trust for his use and benefit until he arrives at the age of 60 years old at which time the fee shall be turned over to him and should the said Harry D. Rice die before arriving at said age said trust fund, except the accumulation, if any, shall immediately vest in the defendant, Zelia Rice Coates, and the same...