Georgetown Nat. Bank v. Ford

• Decision Date: 25 June 1926
• Parties: GEORGETOWN NAT. BANK v. FORD ET AL.
• Court: Kentucky Court of Appeals

285 S.W. 218

215 Ky. 472

GEORGETOWN NAT. BANK v. FORD ET AL.

Court of Appeals of Kentucky.

June 25, 1926

Appeal from Circuit Court, Scott County.

Suit by the Georgetown National Bank, executor of the will of Fred Stoffel, deceased, against John F. Ford, administrator of the estate of Kate Stoffel, deceased, and another. From the decree rendered, plaintiff appeals. Affirmed.

Bradley & Bradley, of Georgetown, for appellant.

Ford &amp Ford, of Georgetown, for appellees.

SETTLE J.

Fred Stoffel, a resident of Scott county, Ky. died October 10 1923, testate, survived by his wife, Kate Stoffel, and a son Louis Stoffel; the widow being the second wife of the testator and the stepmother of the latter's son. October 15, 1923, his will was duly admitted to probate by the Scott county court. At the same time the appellant, Georgetown National Bank, of the city of Georgetown, appointed by the testator's will as the executor thereof, and being authorized by its charter to so act, by order of the Scott county court, duly qualified as such executor.

The will of Fred Stoffel devised to his son Louis Stoffel his farm of 100 acres situated in Scott county, with the provision that he pay to the testator's widow, Kate Stoffel, during her life, one-half of the income therefrom, which payments were made a charge upon the farm. The will also devised to the testator's widow for life, with remainder in fee at her death to the son, a house and lot in Royal Spring addition to the city of Georgetown, and, further, after a small bequest to the children of his son of certain stock in a corporation known as the Farmers' Union Supply Company, bequeathed the testator's remaining personal estate to his widow for life, with remainder at her death to the testator's son, but made the Georgetown National Bank the holder of this personal estate as trustee during the life of the widow.

Kate Stoffel, widow of the testator, Fred Stoffel, after surviving him about two months, died at her home in Georgetown, December 13, 1923, intestate, and on the day following viz., Dec. 14, 1923, there was filed in the office of the clerk of the Scott county court a paper purporting to be a renunciation of the will of Fred Stoffel, deceased, executed October 26, 1923, sixteen days after his death, by Kate Stoffel as his widow. The paper referred to reads as follows:

"Know all men by these presents:

(1) That I, Kate Stoffel, widow of Fred Stoffel deceased, do hereby renounce the provision of the will of my said husband, Fred Stoffel, which was admitted to probate by order of the Scott county court on October the 15th, 1923, and is now of record in the office of the clerk of the Scott county court at Georgetown, Kentucky; and I hereby relinquish the provisions of said will and hereby elect to take my dower, statutory exemptions, and distributable share in said estate allowed me by law as if no will had been made by my said husband.

(2) If I should die before having delivered this instrument to the clerk of the Scott county court for record and before the expiration of twelve months from the date of the probate of my said husband's will, in such event I hereby authorize and direct that this instrument be immediately delivered to the clerk of the Scott county court for record as provided by law, in such event this instrument shall have the same force and effect as if delivered for record before my death.

In testimony whereof, witness my hand this October 26th, 1923.

[Signed] Kate Stoffel.

The foregoing instrument was subscribed and acknowledged by Kate Stoffel to be her voluntary act and deed before us, who at her request, in her presence and in the presence of each other, have hereunto subscribed our names as witnesses this October 26, 1923.

[Signed] E. C. Kuttner.

H. C. Ford.

Commonwealth of Kentucky, County of Scott.

I, H. Church Ford, notary public within and for the county and state aforesaid, certify that the foregoing instrument was duly acknowledged before me in said county and state by Mrs. Kate Stoffel to be her act and deed, on October 26, 1923.

In testimony whereof witness my hand this October 26, 1923.

[Seal.] [Signed] H. Church Ford,

Notary Public, Scott County, Ky.

My commission expires April 12, 1926.

Commonwealth of Kentucky, County of Scott.

I, L. L. Calvert, clerk of the county court for the county and state aforesaid, do hereby certify that on the 14th day of December, 1923, the foregoing instrument of the renunciation of the will of Fred Stoffel by his widow, Mrs. Kate Stoffel, was produced to me by H. C. Ford, in the county and state aforesaid, and duly proved as required by law by the oath of H. C. Ford, subscribing witness to said instrument of renunciation which said witness first having been duly sworn by me testified that said instrument of renunciation was signed in his presence and in the presence of E. C. Kuttner, the other subscribing witness thereto by said Kate Stoffel, widow of Fred Stoffel deceased, and that he, H. C. Ford, as subscribing witness to the said instrument, signed his name as such in the presence of said Mrs. Kate Stoffel and in the presence of E. C. Kuttner and on this day said instrument was delivered and left with me for record, and the same together with this certificate have been duly recorded in my office.

In testimony whereof witness my hand this December 14, 1923.

[Signed] L. L. Calvert,

Clerk Scott County Court.

A true copy.

Attest:

[Signed] L. L. Calvert,

Clerk Scott County Court."

Shortly after Kate Stoffel's death, the appellee John F. Ford, of Scott county, by an order of the Scott county court, was appointed and duly qualified as the administrator of her estate, and on January 22, 1924, the present action in equity was brought in the Scott Circuit court by the Georgetown National Bank, executor of the will of Fred Stoffel as plaintiff against John F. Ford, administrator of the estate of Kate Stoffel, and Louis Stoffel, devisee under the will of Fred Stoffel, as defendants, for the purpose of having determined the rights of the parties under the will of the latter and the instrument executed by his widow, relied on by the administrator of her estate as a renunciation of that will. The petition, after substantially setting forth the facts as above related, alleged that the paper executed by the widow of Fred Stoffel as a renunciation of his will is invalid, for that or any other purpose, but that Ford, as administrator of her estate by virtue thereof, was claiming from the executor of the will of Fred Stoffel the exemption of $750, to which it is alleged her renunciation of his will entitled her under the statute as his widow, and, in addition, one-half of the personal estate of the deceased husband remaining after the payment of his debts and costs of administration; while, on the other hand, the testator's son, Louis Stoffel, as devisee under his father's will, was insisting that Kate Stoffel's purported renunciation of the will should be given no legal effect, that her administrator acquired no interest in the testator's estate by reason thereof, and that the whole thereof, after payment of the testator's debts and costs of administration, should be paid to him. The petition closed with a prayer that the rights of the parties be determined by a judgment of the court directing the executor how to distribute the testator's estate.

The plaintiff later filed an amended petition setting forth with particularity the character, amount, and value of the real and personal estate received by it as executor of the will of Fred Stoffel.

As the defendant Louis Stoffel, son of the testator, though before the court, made no defense to the action, we must assume that he, as in the petition alleged, acquiesced in its averments attacking the validity of the renunciation made, or attempted, of the testator's will by his widow, and also in its prayer that the court declare the same void. The administrator of the estate of the widow did, however, make defense to the action by filing a general demurrer to the petition, as amended, and with it an answer and counterclaim. Which, without waiving the demurrer, specifically traversed such of the allegations of the petition and amendment thereto as attacked the validity of the widow's renunciation of the will of the testator, and, in addition, alleged its authorization by section 1404, Kentucky Statutes, and due execution as required by the provisions thereof, which, as further alleged, by reason of the widow's death, entitled the administrator of her estate to be paid by the executor of the will of Fred Stoffel, her deceased husband, besides the exemptions of the value of $750, allowed a widow by statute, as in case of the deceased husband's intestacy, one-half of the latter's surplus personal estate, or its value, for all of which judgment was prayed against the executor by the administrator on his counterclaim.

It does not appear from the record what action, if any, was taken by the circuit court on the appellee's demurrer to the petition, as amended. It does, however, show that a general demurrer filed by the appellant to the appellee's answer and counterclaim was overruled by the court; that this ruling was excepted to by the appellant; that the latter thereafter refused to further plead; and also that the ruling of the court on the demurrer was followed by the submission of the case on the pleadings and exhibits. Whereupon it was adjudged by the court that the renunciation of the will of the deceased testator, Fred Stoffel, by his widow, Kate Stoffel as set up in the answer of the administrator of her estate to the petition of the executor of the will of Fred Stoffel, was complete and effective, and that the defendant John F. Ford,...