Ex parte Walker's Ex'r
| Decision Date | 09 November 1933 |
| Citation | 68 S.W.2d 745,253 Ky. 111 |
| Parties | Ex parte WALKER'S EX'R. |
| Court | Kentucky Court of Appeals |
Rehearing Denied March 23, 1934.
Appeal from Circuit Court, Kenton County, Common Law and Equity Division.
Petition under the Declaratory Judgment Act by the Covington Trust & Banking Company, executor of Charles A. J. Walker, deceased wherein the Immanuel Methodist Episcopal Church of Covington and others intervened. From the judgment, the executor and others appeal.
Affirmed.
Jackson W. Sparrow, of Cincinnati, Ohio, for appellants.
Edward W. Pflueger and C. A. Schrotter, both of Covington, for appellee.
CREAL Commissioner.
On September 17, 1928, Charles A. J. Walker executed and delivered to the Rev. Frank T. Enderis, D. D., and the Board of Trustees of the Immanuel Methodist Episcopal Church of Covington, Ky. three instruments of writing designated in the record as A, B, and C, respectively, and reading:
Dear Doctor Enderis and Brethren: In consideration of the Board of Trustees of Immanuel Methodist of Covington, Kentucky, agreeing to build a new church to cost not less than Two Hundred Thousand ($200,000.00) Dollars, and in further consideration of the subscriptions of members of the church for the said purpose, I hereby subscribe the sum of Twenty-Five Thousand ($25,000.00) Dollars payable when the contract for the new church is signed.
This subscription is made on behalf of myself, my son Gordon Walker, Carol W. Hoefinghoff and Lee W. Hoefinghoff.
Dear Doctor and Brethren: In consideration of the Board of Trustees of Immanuel Methodist Episcopal Church of Covington, Kentucky, planning for a church to cost not less than Two Hundred Thousand ($200,000.00) Dollars, and entering into a financial campaign for that purpose within the next three months, I hereby agree and bind myself, my heirs, executors, administrators and assigns, to contribute the sum of Ten Thousand ($10,000.00) Dollars for the purpose of erecting in said church an organ as a memorial to Natalie Beck Walker, the said sum to be used so far as necessary for the payment and construction of said organ. Should the same not be entirely used for that purpose, the balance shall become an endowment fund, the net income of which shall be used towards the expense of purchasing music and paying such expenses as may be necessary to furnish good music for the said church.
Dear Doctor Enderis and Brethren: In consideration of the building of a new church by the Board of Trustees of Immanuel Methodist Episcopal Church of Covington, Kentucky, and of their agreement not to try to sell the present church property until the new church is well on its way, and then proceed to sell it with the proviso that we may continue to occupy the old church, I hereby agree and bind myself, my heirs, executors, administrators and assigns, to purchase and pay for the old church property and parsonage at the south-east corner of Tenth and Russell Streets, Covington, Kentucky, the sum of Twenty-five Thousand ($25,000.00) Dollars. Should the Trustees find a sale for said property at that figure, or at a larger figure, they are at liberty to make a sale at that time with the provision that we must be allowed to use the property until we move into the new church.
I am binding myself to this agreement in consideration of the fact that it is the intention of the Board of Trustees to build a church to cost not less than Two Hundred Thousand ($200,000.00) Dollars for the building, not including the lot, and that they will go into the consideration of plans and make a financial campaign within the next three months.
Sincerely yours, Charles A. J. Walker."
On November 5, 1928, Mr. Walker struck out the date on the writings A and B and inserted the latter date, and added at the bottom of A below the signature of himself and the attesting witness, the words, "This cancels a former subscription signed by me," and again affixed his signature which was likewise attested by Mary C. Cronin.
Charles A. J. Walker died testate on November 12, 1928, and the Covington Trust & Banking Company, which was nominated in his will as executor, was appointed and duly qualified as such. Among the papers found in the safe deposit box of decedent was a carbon copy of the first instrument of writing hereinbefore described to which was attached two notes dated August 15, 1928, against Walter H. Wuerdeman.
The executor instituted this action in the Kenton circuit court under the Declaratory Judgment Act (Civ. Code Prac., §§ 639a--1 to 639a--12), and, after setting out the foregoing instruments of writing, alleged that the Immanuel Methodist Episcopal Church of Covington, hereinafter called the church, had conducted a campaign for subscriptions to pay for the erection of a new church building and had secured subscriptions in the sum of $126,000, including the two subscriptions of $25,000 and $10,000 made by Mr. Walker and evidenced by the two writings above described; that the church had employed an architect to draw up plans for a church building to cost in excess of $200,000; that the church congregation is ready and willing to sign a contract for the erection of the new church, but does not feel justified in signing the contract therefor until assured that the pledges made by Mr. Walker will be paid; that the church did enter into consideration of plans and making a financial campaign next succeeding the 17th day of September, 1928; that it has not sold nor made any effort to sell the old church or parsonage referred to in the instrument of writing dated September 17. 1928.
The prayer of the petition is for a declaration of rights and that the court declare and adjudicate whether the writings described in the petition, or either of them, made by deceased to the church, are valid and binding pledges and shall be paid by the executor and also what disposition shall be made of the Walter H. Wuerdeman notes attached to the carbon copy as hereinbefore set out; as to whether they shall be deemed to constitute a payment of the pledge, collateral thereon, or otherwise; that the church and Carol W. Hoefinghoff and Charles Gordon Walker, heirs of deceased, be notified of the pendency of this action and given the privilege of intervening.
By its separate answer the church admitted the allegations of the petition and further averred that decedent was at the time of his death and for many years prior thereto a member of the board of trustees of the church and a devoted member thereof that for several years prior to...
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