Hill v. Harding

• Decision Date: 03 October 1891
• Citation: 17 S.W. 199,92 Ky. 76
• Parties: Hill et al. v. Harding et al. [1]
• Court: Kentucky Court of Appeals

17 S.W. 199

92 Ky. 76

Hill et al. v. Harding et al. ^[1]

Court of Appeals of Kentucky.

October 3, 1891

Appeal from circuit court, Henderson county.

"To be officially reported."

Action by Birdie Hill and others against J. H. Harding administrator, to recover on defendant's administration bond. Dismissed. Plaintiffs appeal. Affirmed.

Pryor J.

Andrew Tate and Hugh Tate, two bachelor brothers, and both living to an advanced age, executed a joint will that was admitted to probate in the county of Henderson, where they resided at the time of their death. They owned jointly a large landed and personal estate, valued at many thousand dollars. Hugh Tate died in the year 1872, and the joint will was probated during that year as his last will, and Andrew Tate died in the year 1875, and shortly after the joint instrument was also probated as his last will. They had a nephew, Gabriel Tate and two nieces, Mary Harding and Nancy Herr, to whom, and their children, they devised their large estate. After the death of Andrew Tate, the appellee J. H. Harding was appointed and qualified as administrator with the will annexed of both testators, and undertook the execution of the will, giving bond, with his co-appellee James M. Herr, as one of the sureties. Birdie Hill and her husband (Mrs. Hill being the daughter of the devisee Gabriel Tate) instituted this action in the court below on the administrator's bond of the appellee Harding, alleging in the petition that government bonds, deposits in bank, notes, etc., of the value of $86,000, belonging to the testators, had been paid over to her father and the two other devisees, and that the amount paid over to her father had been wasted by him and forever lost to her; basing her claim on the ground that her father had only a life-interest in this personalty, with remainder to his children; and this is one of the principal questions to be settled on this appeal.

It is first insisted by counsel for the administrator that a joint will, such as was probated in this case, is a nullity, for the reason that it destroys the power of revocation on the part of both the parties to it, and therefore contravenes the policy of the law. Authorities of some weight are cited in support of this position, and to make an irrevocable will would be the creation of an instrument unknown to the law. Redfield on Wills (volume 1, p. 182) says that two or more persons may make a joint will that will be entitled to probate on the death of either, but will require a separate probate. The Indiana supreme court held in Black v Richards, 95 Ind. 184, a joint will to be valid; and a like question was determined in Betts v Harper, 39 Ohio St. 639. If Andrew Tate, one of the testators, who survived his brother, had revoked the will in so far as he was interested in the property devised, his right to do so would have been sustained. It was his estate, and he had the right to dispose of it as he pleased; and if his own circumstances in life changed, or if the objects of his affections had forfeited their claims to his bounty for reasons to himself deemed sufficient, we perceive no reason why he could not have altered the will, in so far as it affected his interest in the property. There was no effort on the part of either of the brothers to revoke the instrument, and both died leaving the paper as their last will and testament, and, being valid, the next of kin, who are also the devisees, took under the will, and not as heirs at law.

The ground of recovery insisted upon by the appellee Mrs. Hill who was a daughter of the devisee Gabriel Tate, is that by the provisions of the will the entire residuum of the estate, after making a specific devise of certain lands to each one of the devisees, was devised to their nephew Gabriel, and their two nieces Mary Harding and Nancy Herr, for life, with remainder to their children, and that this residuum, consisting of government bonds, deposits in bank, etc., was all paid over to the life-tenants, when it was the duty of the appellee, the administrator, to have paid them the interest only, holding the principal sum for those in remainder. The defense maintain that the residuum was devised to the nephew and nieces without any other limitation than that of their surviving the testators; that if they survived the two testators it was their absolute property, and, if dead, that it then passed to the children of the one dying, if any, if not, then to the surviving devisees or their children. It is also insisted that, if the estate in the first takers was a life-estate, the devise being specific in its character, it was the duty of the personal representative to pay over to the owners of the life-interest the principal as well as the income of this devise, and for that reason no responsibility exists. The testators devised to Gabriel Tate certain lands, (describing them,) "for and during his life, and then to his children, and, in case he shall leave no child alive at his death, that said lands shall be divided equally between Mary Harding and Nancy Herr, if both shall survive, for their use and benefit during their life-time, and then to their children. If Mary shall survive Gabriel, he leaving no child, then the lands bequeathed to him shall be equally divided between her, for her use and benefit during life, and then to her children, and to the children of Nancy, or, if Nancy shall leave no child, the lands shall pass to the possession of Mary during her life, and then to her children; or, if only Nancy shall survive Gabriel, (he leaving no child,) the lands bequeathed to him shall be equally divided between her, for her use during life, and then to her children, and the children of Mary, or, if Mary shall leave no child, the said lands shall pass to the possession of Nancy during her life, and then to her children. If neither Mary nor Nancy shall survive Gabriel, he leaving no child, the lands bequeathed to him shall be equally divided between the child or children of Mary and the child or children of Nancy, or if either shall leave no child, the lands shall pass to the...