Duncan v. Kennedy
| Decision Date | 25 June 1873 |
| Citation | 72 Ky. 580 |
| Parties | Duncan, & c. v. Kennedy, & c. Anderson, trustee, & c. v. Clark, & c. |
| Court | Kentucky Court of Appeals |
APPEALS FROM LOUISVILLE CHANCERY COURT.
THOMPSON & BOOTH, For Appellants Duncan, & c.
PHIL LEE, D. M. RODMAN, JOHN & J. W. RODMAN, For Kennedy, & c.,
CITED
Wigram on Wills, 162, 183, 726.
Hill on Trustees, 384, 249.
P. Wm 194, Newland v. Shepherd.
3 Redfield on Wills, 425.
2 Redfield on Wills, 116, 313, 308, 460, 126.
1 Redfield on Wills, 430, 427, 596.
2 Williams on Executors, 1349.
1 McCarter, 124, Leigh v. Savidge.
1 Johnson's Ch'y, 494, 207, Earl v. Grim.
2 H Blackstone's R. 444, Smith v. Coffin.
4 Vesey, 41, Phillip v. Chamberlain.
8 Vesey, 617, Sadler v. Turner.
6 B Mon. 98, Barclay v. Dupuy.
6 Bush 651, Brown v. Brown.
4 Bush, 160, Wells v. Newton.
5 Bush, 276, Thomas v. Capps.
8 B. Mon. 601, Stephen v. Walker.
13 B. Mon. 293, Wheeler v. Dunlap.
10 B. Mon. 346, Hunt v. Johnson.
18 B. Mon. 371, Williamson v. Williamson.
18 B. Mon. 864, Driskell v. Hanks.
11 B. Mon. 32, Lackland v. Downing.
12 B. Mon. 656, Moore v. Moore.
15 Vesey, 103, Leigh v. Leigh.
11 B. Mon. 81, Arnold v. Arnold.
BARNETT, EDWARDS & HARDING, For Ten Broeck and wife,
CITED
| Jarman's Rule 16. | 1 Redfield, 427. |
Dwarris on Statutes, 145.
Johns. Eng. Ch'y, 276, Barnard v. Minshall.
1 Redfield, p. 471, sec. 35, " or" and " and" interchanged. Ibid. 473, " if" and " when."
8 B. Mon. 601, Stephen v. Walker.
9 Dana, 41, King v. Bullock.
8 B. Mon. 348, Singleton's will.
1 Mon. 25, Chinn v. Respass.
7 Bush, 368, Stewart v. Barrow.
3 Bush, 623, Stewart v. Brady.
1 Marsh. 217, Baird v. Rowan.
2 Met. 129, Wren v. Hynes.
3 J. J. Marsh. 321, Berry v. Headington.
2 B. Mon. 462, Pattie v. Hall.
2 Redfield on Wills, p. 116 and note 32.
3 Barb. Ch'y, 466, Cronner v. Pinkney.
3 Mon. 279, Adie v. Cornwell.
5 Dana, 431, Birney v. Richardson.
| 1 Redfield, 422-3. | Jarman's Rule 23. |
| 1 Redfield, 432-3. | Jarman's Rule 24. |
| 1 Kent, 162. | 3 Russ. 365. |
12 B. Mon. 115, Hughes v. Hughes.
10 B. Mon. 474, Tibbatts v. Berry.
12 B. Mon. 642, Carroll v. Carroll.
12 B. Mon. 46, Webb v. Webb.
BODLEY & SIMRALL, For W. George Anderson,
CITED
Story's Equity Jurisprudence, secs. 179, 181.
Williams on Executors, 1109.
Williams on Executors, p. 1131, n. 1.
Williams on Executors, 1145.
2 Redfield on Wills, 635.
1 Stanton's Revised Statutes, p. 426, sec. 17.
1 Jarman on Wills, 465, top page 431.
1 Redfield on Wills, 465-6, 428, 23d Rule.
2 Met. 129,Wren v. Hynes.
7 Bush, 114, Harris v. Berry
8 B. Mon. 616-622, DeBoe v. Lowen.
7 B. Mon. 632, Danforth v. Talbot.
2 Redfield on Wills, p. 685, par. 47.
9 Cushing's Reports, 916.
2 Stanton's Revised Statutes, p. 227, sec. 7.
12 B. Mon. 643, Robb v. Belt.
14 B. Mon. 260, McKay v. Merrifield.
23 Penn. St. 9, Smith's appeal.
M. C. JOHNSON, JOHN MASON BROWN, For Clay and wife,
Fearnis's Contingent Remainders, sec. 59.
Revised Statutes, chap. 30, sec. 17.
8 Vesey, 617, Sadler v. Turner.
1 Redfield on Wills, pp. 400, 402, 408.
8 B. Mon. 56, Pope's ex'rs v. Elliott.
8 Bush, 141, Carlin's adm'r v. Carlin.
2 Redfield on Wills, 262.
John L. Martin died in 1854, the owner of a large estate, consisting of land, slaves, and personal property, mostly situated in the states of Kentucky, Indiana, and Mississippi, the decedent's residence and much of the real estate being in Louisville, Kentucky. Having no children living at his death, his only surviving descendants and heirs at law were the following four grandchildren and one great-grandchild; viz., Blanton H. Duncan, the son of the decedent's daughter Patsy Duncan, deceased; Orville M. Anderson, Patsy D. Anderson , Kate M. Anderson (now the wife of Thomas L. Kennedy), children of the decedent's daughter Nancy O. Anderson; and Pattie A. Field (now the wife of B. J. Clay), she being the daughter of Charlotte Field, deceased, who was the daughter of Orville Martin, a son of J. L. Martin.
John L. Martin left a will, written by himself, and published in 1852, the construction of which is involved by the questions now before this court for decision.
The testator, after making, in the first clause of his will, some provision for his wife, who was then living, directed and devised by the second clause as follows:
" All the houses and lots that I now own, or that I may hereafter purchase, in Kentucky or Indiana, it is my will that my executors, hereafter named, shall lease to good tenants until the 1st day of January, 1872, and the proceeds, when collected, to be divided as hereinafter directed, reserving always a sufficient sum to keep the tenements in good order and good repair."
And in the third clause of the will he directed that certain tracts of his lands be sold, and debts due from particular individuals collected, and that the proceeds be invested in productive real estate in the city of Louisville, and that the same be leased to good tenants until the 1st day of January, 1872, upon the terms and conditions directed in said second clause.
And in the fourth clause of the will he provided for the management of his plantation of about two thousand acres in the state of Mississippi, with his slaves and stock and other personal property thereon, until the 1st day of January, 1872, and directed that the net proceeds thereof be divided as provided for in subsequent clauses of the will.
After providing in the sixth and seventh clauses of the will for the emancipation of his slaves on said plantation, and their removal and colonization at the expense of the estate, to be derived from the plantation, he directed and devised in the seventh clause as follows:
" And the plantation, negroes, and stock of every character and description shall be divided among the heirs hereafter named; but I should prefer the plantation kept up and carried on, on joint account of the heirs, until the 1st day of January, 1880; but I leave this optional with a majority of my heirs."
In the eighth clause of the will provision is made for the care and maintenance of the testator's old and infirm slaves; after which, and by the ninth clause, he devised and directed as follows:
" Bank and other stocks that I now own, or that I may hereafter purchase, unless disposed of prior to my death, shall remain in my name for three years after my decease, when it shall be divided as hereinafter directed. Dividends from stocks, proceeds for rents, and proceeds of crops from plantation shall be paid over every three, six, nine, twelve, or fifteen months, viz.: over --
Thomas Anderson, trustee for Kate Kennedy, one fifth.
Orville M. Anderson, one fifth.
Patsy D. Anderson, one fifth.
B. H. Duncan, one fifth.
From the death of the testator until the 1st day of January, 1872, the executors named in the will, or part of them, acted in the discharge of the duties and trusts therein devolved upon them, and by investments made in pursuance of the third clause of the will added largely to the real property of the estate in the city of Louisville.
It appears also that they managed the plantation and slaves in Mississippi in accordance with the directions of the will, except that they were interrupted in doing so by the late civil war and its results.
In 1857 Orville M. Anderson, one of the five devisees named in the will of J. L. Martin, died, leaving a will in which, after making certain specific bequests, he devised all the residue of his estate, described as including the one fifth part of J. L. Martin's residuary estate, to George Anderson, in trust for the sole and separate use of his daughter and only child, Mary Anderson, who subsequently intermarried with M. Lewis Clark.
This suit in equity was instituted by Blanton H. Duncan for a partition of the estate, and to have allotted to him in severalty one third part thereof, which he claimed as having descended to him from J. L. Martin, subject only to restrictions, trusts, and encumbrances imposed by the will. The other parties in interest being brought before the court, the following questions were, by appropriate pleading, presented for its decision:
1. As between Duncan and Clay and wife, who represented two of the three children of the testator on the one side, and the other parties, representing the other of said children on the other side, did the will operate to devise the whole estate, or leave that part of it not specifically disposed of to pass by the law of descent to the respective descendants of said three children of J. L. Martin?
2. If the testator did not die intestate as to any part of his estate, but devised equal or particular interests therein to the five persons named in the...
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