Fraser's Ex'r v. Page
| Decision Date | 17 April 1884 |
| Parties | Fraser's ex'r v. Page, & c. |
| Court | Kentucky Court of Appeals |
1. The right of one acting in a fiduciary capacity to apply to a court of Equity as to the application or distribution of funds in his hands, where all parties in interest can be heard, is unquestionable.
2. Having this right it would be a harsh rule that would hold the fiduciary liable for an error of the court, to which he had made his application.
3. The executors were not compelled to appeal from the judgment, but the devisees complaining should have prevented distribution by an appeal and supersedeas.
APPEAL FROM ADAIR CIRCUIT COURT.
ALEX. P. HUMPHREY FOR APPELLANT.
This suit was originated by the executors. They came into court to be advised as to their duty. The question whether the conditional devise was valid was certainly a doubtful one and one which they could not be expected to decide at their own risk. They are not to be held responsible for an erroneous judgment. (Perry on Trust, sec. 928; 1 Met., Mass Rep., 207.)
The court below erred in overruling appellant's motion to file the amended petition, suggesting that there was still land enough in the hands of the divisees to make the Pages equal.
W. L PORTER AND W. P. D. BUSH FOR APPELLEE
If the court below erred as is insisted upon by appellant we submit that this question cannot be raised upon this record.
But if this court holds otherwise we maintain that each of the said five devisees should be required to pay to said trustee, the one sixth of such amount as each received, with interest from the distribution.
The offer of appellants to surrender land which they could not surrender furnishes no defense of their action.
The original action in this case was instituted by the executors of Wm. Fraser, deceased, asking for a construction of his will in order that they might distribute the estate between those entitled. All the parties in interest were made defendants, and a judgment rendered determining that one of the divisees was not entitled, and a distribution directed to be made. The court below excluded the devisee, Eunice C Page, a daughter of the testator, upon the ground that the conditional devise to her was void. (The case is reported in 14 Bush, page 207.) The executors, in their petition, asked the Chancellor, in the event the devise was valid, as its payment depended upon a contingency, to appoint a trustee to hold the fund until the contingencies happened, but as the devise was adjudged void no trustee was appointed.
After this judgment the executors proceeded to settle the estate and make distribution between the devisees in accordance with the judgment, and did in fact, as they allege, make a full and complete distribution.
The judgment of the lower court was rendered in the month of February, 1873, and appeal taken in the month of May, 1875. This court reversed the judgment of the lower court in September, 1878, holding that the devise was valid and that Eunice Page was entitled to her interest as devisee upon performing the conditions annexed to the devise and upon the contingency provided by the will. On the return of the cause to the lower court, and after filing the mandate of this court, the executors offered to file an amended petition setting up the fact of the distribution between the devisees as directed by the Chancellor below, and insisting that the devisee who had recovered the estate should contribute to make up the interest of the excluded devisee, Mrs. Page; the object of the amendment was to make the devisees liable to Mrs. Page and not the executors. The Chancellor, proceeding on the idea that the judgment of the lower court afforded the executors no protection, ascertained the value of the entire estate and directed the executors to pay one-sixth of the amount to a trustee, to be held by him for Mrs. Page in the event of her compliance with the provisions of the will of her brother, and if they failed to pay the same within a fixed period, a personal liability was imposed upon them and an execution directed to issue, to be levied, not of assets in their hands as executors, but upon their own estate, and from that judgment they have appealed.
The construction of the will of the testator was the subject of controversy between the devisees and the executors, not willing to assume the responsibility of acting on...
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