Goosling v. Varney's Trustee

• Decision Date: 07 May 1937
• Citation: 105 S.W.2d 178,268 Ky. 394
• Parties: GOOSLING et al. v. VARNEY'S TRUSTEE et al.
• Court: Kentucky Court of Appeals

105 S.W.2d 178

268 Ky. 394

GOOSLING et al. v. VARNEY'S TRUSTEE et al.

Court of Appeals of Kentucky

May 7, 1937

Appeal from Circuit Court, Pike County.

Suit by Lucy Ellen Goosling, etc., and others against Nancy Jane Varney's trustee in bankruptcy and others. From the judgment, the plaintiffs appeal.

Affirmed.

Willis Staton, of Pikeville, for appellant Geo. Pinson, Jr. executor.

K. L Varney, of Pikeville, for appellant Nancy Jane Varney.

J. C Cantrell, of Pikeville, for appellants Lucy Ellen Goosling et al.

Harman, Francis & Hobson, of Pikeville, for appellee Leckies Collieries Co.

J. J. Moore and Stratton & Stephenson, all of Pikeville, for appellee W. K. Elliott.

O. T. Hinton, of Pikeville, for appellee Norfolk & W. R. Co.

THOMAS Justice.

On March 20, 1914, Alex Varney, a citizen and resident of Pike county, Ky. executed his last will and testament appointing appellant George Pinson, Jr., executor thereof. He died on April 11, 1919, slightly more than five years after executing it. It was thereafter regularly probated in the Pike county court and the appointed executor qualified. The testator was the owner of a considerable quantity of real estate in Pike county, much if not all of which was underlaid with marketable coal. After the execution of the will and, of course, before his death, he gave three coal leases to different lessees, and two of them opened up mining operations before his death; the third one not doing so until after his death.

By the first clause of the testator's will he directed his debts paid by his executor. By the second clause he gave to his wife, Pricy A. Varney, all of his, personal property and then said: "And I also give and bequeath unto my beloved wife, Pricy A. Varney all of my real property situated in Pike County, Kentucky, and on the waters of Pond Creek during her natural life, if she should survive me, and after her death to descend as provided in clause 3 hereof." In that (third) clause he directed: "After the death of my beloved wife, Pricy A. Varney, if she should survive me, I give and devise unto my daughter, Nancy Jane Goosling, for and during her natural life, all of my said real estate, and at her death to her children in fee." By clause No. 4 he directed that if he should survive his wife, then his daughter, Nancy Jane Goosling, should take all of his personal property absolutely and also his real estate for her life "and at her death to her children in fee." By the sixth clause he empowered and authorized his executor to lease any or all of his coal property for mining purposes and empowered and authorized him to collect the royalties arising therefrom, and then said: "And if such lease is made by such executor or either of them, then and in that event I direct that my said executors pay to my said daughter, Nancy Jane Goosling from time to time such sums of money that they or either may deem necessary for the comfortable support of my said daughter, Nancy Jane Goosling, and her children, and that the residue thereof, if any, arising from said lease shall be held in trust by my said executor and paid to the said children of my said daughter, Nancy Jane Goosling as they arrive at the age of twenty-one years." Other clauses of the will, not herein specifically referred to, have no bearing upon the questions involved.

On January 24, 1921, the appointed and qualified executor filed an equity action in the Pike circuit court against the widow of the testator, his daughter, and the latter's three children--who were infants under fourteen years of age--asking and praying for a construction of the will, and especially asked for directions with reference to these questions, (a) who had the right to collect the royalties arising from the coal leases given by the testator before his death, i. e., whether he or the current life tenant possessed such right; and (b) who was entitled to such fund after it was collected? The case was practiced and prepared for and was submitted, and the court adjudged that the widow was entitled to collect the royalties from the three leases referred to during her life, and to appropriate all of them to her individual use; that after her death the daughter was entitled to do likewise; and that after her death the royalties became the property of the daughter's three infant children. An appeal was duly prosecuted to this court from that judgment and it was affirmed in the case of Goosling et al. v. Pinson, Jr., Executor, et al., decided on March 2, 1923, and reported in 198 Ky. 57, 248 S.W. 248. After that opinion was rendered, the daughter of the testator obtained a divorce from her husband and in which she was given the custody of their three infant children.

Following that the widow, Pricy A. Varney, and the testator's daughter--both of them then being unmarried--signed a fiduciary bond of a kinsman, W. P. T. Varney, who was cashier of the Day & Night Bank of Williamson, W. Va., whereby they obligated themselves to it to make good any defalcations of their principal. He later became involved in his accounts, and his two sureties (the widow and the daughter of the testator) became liable to the bank for a large sum of money--amounting in the aggregate to something in the neighborhood of $140,000. They thereupon filed their voluntary petitions in bankruptcy in the proper federal court in West Virginia, in which they listed as a part of their assets their respective royalty rights acquired under the will of the husband and father, Alex Varney (the testator), and the court directed its appointed trustee to collect the royalties and appropriate them to the payment of the debts of the two bankrupts--chief among which was their surety liability to which we have referred. Thereafter, the lessees paid the royalties due under their respective leases to the trustee in bankruptcy as directed by the bankruptcy court, until this suit was filed in the Pike circuit court by the three infants through their statutory guardian, A. M. Varney, against the executor of Alex Varney's will, the daughter, Nancy Jane Varney (she having been restored to her maiden name upon obtaining her divorce), and the respective lessees under the three leases the testator made before his death, seeking to recover for the infants against the lessee defendants the entire royalties accruing since the death of the testator.

In their petition they alleged that a proper construction of the will of Alex Varney gave to them such royalties, subject to amounts necessary for the comfortable support of testator's widow and his daughter, and that they had received no part of the royalties although demanded of the lessees, but which they refused to pay. The petition utterly ignored the prior proceedings to which we have referred; but later pleadings not only manifested that fact but relied on the judgment therein rendered as a bar to plaintiffs' right to recover in this action. The executor interpleaded and appears to have taken a position directly contrary to the determination we made in the prior case; whilst the trustee in bankruptcy, and the lessees, not only relied upon the former judgment in bar of plaintiffs' right to recover, but also contended in their defensive pleadings that the interpretation given the will of Alex Varney in our 198 Ky. opinion, supra, was and is the correct one.

Among the avoidances (contained in replies and other pleadings) of the res adjudicata effect of the former judgment, the infants by their guardian pleaded that the judgment, in so far as they were concerned, was and is void because they were not summoned therein, and that the affidavit for the appointment of a guardian ad litem made in that case by the executor, who was the plaintiff therein, was defective in that it failed to aver that the infant defendants therein (plaintiffs herein) had no guardian, curator, or committee, and that the later appointment of a guardian ad litem in that case was unauthorized and void because of such omitted facts from the plaintiffs' affidavit. Those avoidances as so contained in plaintiffs' reply were denied. The daughter in this case also sought to avoid the effects of the former judgment by contending that a proper interpretation of her father's will gave her only a comfortable support of the royalties arising from the leases he made before his death, and that any surplus thereof vested in her children, which, of course, was and is directly contrary to our holding in the 198 Ky. case. She also contended in her pleadings that she and her deceased mother were fraudulently inveigled into subscribing the bond of their kinsman, W. P. T. Varney, as cashier of the Day & Night Bank of Williamson, W. Va., and for which reason she should not be rendered liable thereon. Of course, it requires no lengthy discussion to demonstrate that neither of such defenses made by her possess any character of merit, since there is no pretense but that she was duly summoned in the former case, the judgment in which is relied on as the res adjudicata bar herein; and the proper time and place for the presentation of her other defense (fraudulent procurement to sign her relative's bond) was and is in the bankrupt court that adjudged the royalties from the three leases to constitute a part of her estate during her natural life, in accordance with the interpretation of Alex Varney's will that we made in the first action, supra.

So that, the only questions presented by this record are: (1) Whether the judgment in the former proceedings, and which we affirmed in the 198 Ky. case, was void for either of the two grounds relied on for invalidating it as to the infants; and if so, then (2) did we err in construing the will of Alex Varney in that opinion--for if we did not, then the same...