Hussey v. Sargent

• Decision Date: 16 June 1903
• Citation: 116 Ky. 53,75 S.W. 211
• Parties: HUSSEY v. SARGENT et al.
• Court: Kentucky Court of Appeals

75 S.W. 211

116 Ky. 53

HUSSEY v. SARGENT et al.

Court of Appeals of Kentucky.

June 16, 1903

Appeal from Circuit Court, Jefferson County, Chancery Division No 1.

"To be officially reported."

Suit for the construction of the will of Daniel P. Hussey, brought by Frederick D. Hussey against George W. Sargent and others in which the guardian ad litem of Emily D. Hussey and others infants, prayed that plaintiff, as executor and trustee, be required to account for the shares due the infants. From the judgment construing the will, and directing plaintiff, as executor and trustee, to account, plaintiff and the guardian ad litem both appeal. Affirmed on plaintiff's appeal, and the appeal of the guardian ad litem dismissed.

St. John Boyle and L. R. Yeaman, for appellants.

Jas. Quarles and W. O. Harris, for appellees.

BURNAM C.J.

The appellant, Frederick D. Hussey, brought this suit against the appellees, George W. Sargent, Ezekiel H. Sargent, Webster P. Hussey, Emily P. Hussey, Sr., Fannie R. Hussey, Emily P. Hussey, Jr., Catherine P. Hussey, Mabel W. Hussey, Dorothy Hussey, and Sarah L. Hussey, for the purpose of obtaining a construction of certain clauses in the will of his father, Daniel P. Hussey, who died on the 25th of July, 1883, at his domicile in the county of Hillsborough, in the state of New Hampshire, and whose will, subsequent to his death, was duly admitted to probate in the probate office of that county. He alleges that Daniel P. Hussey's widow, the defendant Emily P. Hussey, Sr., accepted the provision of his will; that he was his only child and heir at law; that at the time of the death of Daniel P. Hussey he was married to Mary W. Hussey, and at that time had only one child, the defendant Emily Hussey, Jr., who was then 2 years old; that, after the probation of the will of Daniel P. Hussey, the defendants Catherine, Mabel, and Dorothy, children of plaintiff, were born; that, after the birth of Dorothy, his first wife, Mary W. Hussey, died, and he subsequently intermarried with the defendant Fannie R. Hussey, but that he had no children by her. He further alleges that shortly after the death of his father, Daniel P. Hussey, he removed from the state of New Hampshire to the city of Louisville, in the state of Kentucky, with his mother and family, where they have since resided; that the debts and specific legacies of Daniel P. Hussey have all been paid, except one to a public library in the city of Nashua, which is not yet due; that the estate of Daniel P. Hussey consisted entirely of personal property, which came into the hands of the plaintiff as trustee and executor, and that he has since collected and received the entire income of the estate, and that no part of it is within the state of New Hampshire; that he was born on the 9th of August, 1857. All of the defendants, except Emily P. Hussey, Sr., and the infant children of the plaintiff, are alleged to be nonresidents, and are proceeded against as such by warning order; and it is alleged that the infant defendants have no statutory guardian, and the petition asks that a guardian ad litem be appointed to defend for them.

The special questions which we are asked to determine upon this appeal are: First, whether the principal of the one-fifth of the estate, the income of which was directed to be accumulated for the benefit of the children of plaintiff in the sixth clause of the will, has been disposed of by the will, or whether, as to this fund, testator died intestate. Second, whether the provisions requiring that the balance of the income upon the one-fifth of testator's estate, which is directed to be distributed among the children when Emily P. Hussey, Jr., daughter of Frederick D. Hussey, arrives at the age of 35 years, if then living, or at that date when she would have been 35 years of age had she lived, being then deceased, is void as in contravention of the law against perpetuities. Third, whether or not the bequest, contained in section 8, of the remainder of two-fifths of said estate, the income of which is now payable to testator's wife during life, is a good and valid bequest in whole or in part, and, if invalid, whether such portion of the estate is or will become vested in the plaintiff or his heirs by inheritance. Fourth, whether or not the provision that the income of any portion of the said remainder be allowed to accumulate is or is not void as against the rule against perpetuities, and, if invalid, whether or not the same is or will become vested in the plaintiff or his heirs by inheritance.

In the joint and separate answer of the infant defendants Emily P. Hussey, Jr., Catherine P. Hussey, Mabel W. Hussey, and Dorothy Hussey, filed by their guardian ad litem, it is claimed that the trusts for accumulation in favor of his wards provided for in the sixth and eighth clauses of his will are valid and enforceable, and that it was the intention of the testator, Daniel P. Hussey, that these defendants or their children, should any of them die, leaving children, before the date of distribution, should under section 8 of his will receive the principal as well as the accumulated income provided for in that section. He also alleges that his infant wards were intended by testator to be the residuary legatees of any portion of the estate not otherwise disposed of in his will, and makes his answer a counterclaim against the plaintiff for the purpose of having the rights of the infants ascertained, and requiring the plaintiff as executor and trustee to account for their shares when so ascertained. The court below held that the provisions of section 6 and 8 of the will, providing for the accumulation and distribution of the income of Frederick D. Hussey's children at the end of 33 years, at which time Emily would become 35 years old, if living, were valid and enforceable, as was also the bequest of the principal, and adjudged that the plaintiff, Frederick D. Hussey, as trustee and executor, should file a full and complete account showing the annual income from the trust estate from the death of Daniel P. Hussey, and the sums paid by him to Jane M. Littlefield, prior to her death, under the provisions of the sixth clause of the will. To which the plaintiff excepted. The lower court declined to make any adjudication on the question as to whether or not the children of Frederick D. Hussey were entitled to take as residuary legatees that portion of the estate of Daniel P. Hussey not specifically devised by his will. To which the guardian ad litem excepted, and both the plaintiff and the guardian ad litem have appealed.

It is contended in behalf of Frederick D. Hussey: First, that the provisions contained in sections 6 and 8 of the will, for the accumulation of specific portions of the income for the benefit of his children, to be paid to them when his daughter Emily P. Hussey, Jr., reaches the age of 35, or, if she should not live that long, at such date had she lived, are void, because in contravention of the law against perpetuities, and that, being void, he, as heir at law, inherits the fund; second, that the testator has failed to dispose of the principal from which this income is derived, and that therefore, as heir at law, he is entitled to it as intestate property. On behalf of the children it is contended by their guardian ad litem that appellant is wrong on both propositions.

In the first, second, third, fourth, and fifth clauses of the will, testator makes certain special bequests about which there is no controversy. We copy the remaining clauses of the will, although only the sixth and eighth are directly involved in this litigation. They are as follows:

"Sixth. After deducting and payment of the legacies before named, I give and bequeath to my beloved wife two-fifths of the income of the remainder during her natural life, and to my said son, Frederick D., I give and bequeath a like sum to-wit: Two fifths of the income of said remainder; and from the remaining one fifth of said income I direct my executors to pay to my sister Jane M. Littlefield an annual sum of Five Hundred Dollars to commence at my decease and payable semiannually, and to be continued and payable during her natural life; the balance of said one-fifth of said income shall be allowed to accumulate for the benefit of the children of my said son or their heirs, such accumulation and such income to be equally divided and paid to and distributed among said children when Emily P. Hussey daughter of Frederick D. Hussey arrives at the age of thirty-five years if then living, or at that date when she would have been thirty-five years of age had she lived being then deceased.

"Seventh. [He gives, at the death of his wife, $50,000 to the city of Nashua to establish a public library.]

"Eighth. If my said son shall survive my wife, he shall receive at her decease the sum of one hundred thousand dollars from my estate and shall continue to receive two-fifths of the income of the remainder, and any remainder income heretofore received by my said wife, shall, after deducting such sums as to my said executors may seem reasonable and fitting for the support of the children of my said son, be allowed to accumulate for the benefit of said children conditioned as payments and distribution as in the sixth clause of the will.

"Ninth. Should my said son die before my said wife leaving no more than two children I give and bequeath to my sister Jane M. Littlefield, my brother's widow Sarah S. Hussey, and to my said half brothers Ezekiel H. and George W. Sargent, if living, the further sum of Fifteen Hundred Dollars, to each and all of such one surviving.

"Tenth. In case of the death of my said son before the death of my wife leaving no children, I give and bequeath to my wife and her heirs

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