Keiningham v. Keiningham's Ex'r

• Decision Date: 16 January 1903
• Citation: 71 S.W. 497,139 Ky. 666
• Parties: KEININGHAM v. KEININGHAM'S EX'R.
• Court: Kentucky Court of Appeals

71 S.W. 497

139 Ky. 666

KEININGHAM v. KEININGHAM'S EX'R.

Court of Appeals of Kentucky.

January 16, 1903

Appeal from circuit court, Whitley county.

"Not to be officially reported."

Action by Jennie Moss Keiningham against H. F. Finley, executor of J. L. Keiningham, deceased. Judgment for defendant, and plaintiff appeals. Reversed.

John H Wilson and Hazelrigg & Chenault, for appellant.

T. L Edelen, for appellee.

BURNAM C.J.

This action was instituted by the appellant, Jennie Moss Keiningham, against the appellee, H. F. Finley, as executor of her father, James L. Keiningham, to recover a legacy devised to her by her father's will. The father of appellant died domiciled in the District of Columbia, and his will was probated in the proper court of the District, and appellee duly qualified as executor thereof, and took possession of the devised estate. After making a number of small bequests to relatives, the will contains the following provisions: "(5) I will and bequeath all the money I have on hand, or on deposit in the National Bank of the Republic in this city (after the payment of all my just debts and funeral expenses), to H. F. Finley, in trust for my daughter Jennie Moss Keiningham, if living, and can be found. (6) I will that my executor hereinafter named use all reasonable means and expense to find my said daughter, and make known to her my history and character, as he shall believe me to have lived. And he will, in his discretion, use the money hereby given him in trust for my said daughter's benefit, towards educating and training her as in his judgment shall be best for her interest; allowing such sums of money to her for clothing and sustenance, from time to time, as in his judgment shall appear to be proper and consistent with her age, wants, and means in his hands putting such money at interest, as best he can for her interest, as shall not be immediately wanted for the uses above indicated, and if, when my said daughter shall arrive at the age of twenty-one years, there shall be any balance in the hands of my executor, he shall pay the same, with any accrued interest in his hands, to my daughter. (7) If my said daughter shall not be living, or, if living, shall die before she attains the age of twenty-one years, without issue of her body living and born in lawful wedlock, then in that event my will is: that all the bequest made in trust for her benefit shall be paid by my executor to my cousin, F. W. Finley, to whom I hereby give and bequeath it." "(9) I will that my executor take control of and raise and train my said daughter as he would his own daughter, in so far as the money given him for that purpose will allow, and that she will submit to him in all respects as she would to me, my purpose being for her alone to receive the benefit of her bequest hereinbefore made; but shall my said daughter fail or refuse to obey my will in this request, then it is my will that my executor pay this bequest to my friend and relative, F. W Finley. (10) I hereby appoint and request my friend, H. F Finley, to carry out, in its true spirit, this my last will and testament." After setting out the facts above recited, the plaintiff alleged that James L. Keiningham had on deposit to his credit in the National Bank of the Republic at the time of his death $1,735.75, which was taken possession of by the defendant as executor. And in the second paragraph of her amended petition she alleges that she was born on the 25th day of June, 1875; that on the 20th day of May, 1881, her mother was divorced from her father by a judgment of the Fayette circuit court; that she was then only 6 years old, and was placed in the custody of her mother; that the judgment, however, reserved the right to make any orders in regard to her future custody that the court might think proper, and that by virtue of this judgment she lived with her mother and under her control until the death of her father, without any communication of any kind with him; that when her father made his will he did not know of her whereabouts, or whether she was living or dead; that shortly after his death the defendant addressed a letter to her at White Hall, Madison county, Ky. where she was then residing with her mother and her stepfather, the letter being dated March 13, 1890, in which he informed her of her father's death and the provisions of his will with reference to her, and invited her to become a member of his family, in accordance with her father's wishes, promising to discharge in good faith the duties imposed by his trust; that this letter was received through the mail, and was taken possession of by her mother, who wrote and mailed to the defendant in plaintiff's name the following letter: "White Hall, Madison Co., Ky. March 18, 1890. Hon. H. F. Finley--Dear Sir: Yours of the 13th to hand, and contents noted. I thank you very kindly for the interest you and your family have manifested to me, and am sorry to be under the painful necessity of declining your offer of acceptance as a ward. You will please pardon me for expressing myself freely to you upon this subject. In the first place, understand I do not wish to interfere with or act in any way contrary to my father's last will and testament. But it was my mother who has struggled through adversity to obtain for me all the advantages I have had, and it is to her that I owe all. And it would be contrary to nature's laws for me to leave her now that I can be a comfort and help in her declining years. Truly, if a child has a friend, it certainly is her mother, and from my own experience have found it to be the case. My home is plentiful and happy, which necessitates me to decline your kind offer in your home. My uncle, Charles F. Smith, of Richmond, says he met you several times in Williamsburg, and would have cheerfully given you all the information concerning my whereabouts had he known of my father's illness or desire to see me before his death, as also my uncle and aunt, Mr. and Mrs. Million, would have cheerfully given my father my address last fall, when he was in Kentucky on a visit. I will not say more on this subject, as there is enough being said throughout Kentucky, but it would be a great satisfaction if you would send me a copy of his will." In response to this communication, the defendant Finley addressed to her the following letter: "Washing, D. D., Mar. 21, 1890. Miss Jennie M. Keiningham, White Hall, Ky.--Dear Miss: Your letter of the 18th inst. to hand. Its tone is the reverse of what I wished it to be, but you are young yet, and I shall not despair. You have need of an education now; later on you may not be so 'pleasantly and plentifully situated.' With good education you can more certainly be able to aid yourself and mother, and it will be of great satisfaction to you in after life. It can but be the wish...