Lane v. Railey

Decision Date03 November 1939
Citation133 S.W.2d 74,280 Ky. 319
PartiesLANE et al. v. RAILEY et al.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Montgomery County; D. B. Caudill, Judge.

Action for a declaratory judgment to construe a will by S. B. Lane and another, individually and as executors of the will of Bessie B. Lane, deceased, against Mary Crit Lane Railey and others. From an adverse judgment, plaintiff S. B. Lane appeals.

Reversed with direction.

W. B White and Lewis A. White, both of Mt. Sterling, for appellant.

Ed C O'Rear, of Frankfort, Charles D. Grubbs, of Mt. Sterling, and W. B. Alexander, of Adrian, Mich., for appellees.

MORRIS Commissioner.

S. B. Lane and others appeal from a judgment of the lower court construing the holographic will of Bessie B. Lane, a maiden lady who died April 16, 1937, then about sixty years of age. Her will and codicils thereto were written while she was in a hospital in Louisville, the will being dated May 20, and the (signed) codicil December, both in the year 1936.

So much of Miss Lane's will as is conceived to be pertinent to a discussion of the case is copied, as is the codicil:

"To my sister Mary Railey, I leave the income of my interest in Woodford County farm and stock thereon during her life.
"To my brother S. B. Lane I bequeath $3,000.00 subject to no debt. After my funeral expenses & marker for my grave are paid for if there be sufficient cash then said sister is to receive $3,000.00 also. If there is then any over it goes to my brother. My furniture and ornaments are to go to my sister during her life--at her death it goes to my nephew, W. N. Lane--if he marries--otherwise it goes to Nancy and Louisa Hoch (my great nieces). My diamond ear rings are to go to my sister during her life--at her death they are to go to Nancy Lane Hoch. If I have not sufficient funds at the time of my death, then my two diamond rings are to be sold--I value them at $300.00 each. At the death of my sister, one-half of proceeds of my interest in Woodford County farm goes to my nephew W. N. Lane his lifetime--if unmarried--at his death it goes to Nancy Lane Hoch. The other half goes to Nancy Hoch and Louisa Hoch.
"It is my desire that they keep the farm as it is a safe investment, and Hunter Railey run same as long as he desires--W. N. Lane is to receive one-half of my part of land as well as proceeds as long as he lives--Nancy and Louisa Hoch are to receive the other half.
"My niece Mary D. Lane has already received much from my sister Mary McConnell so I am leaving it to her daughters instead. I bequeath her one dollar ($1.00) in natural love and affection.
"This is in my handwriting and does not require any witness--any one who attempts to break this will or raise a disturbance over it is to receive nothing. S. B. Lane and Hunter Railey are to be administrators without pay.
"Bessie B. Lane,
"Norton Infirmary,
"Louisville, Kentucky.
"May 20, 1936."
"Codicil to Will--Whatever I have left my nephew W. N. Lane is to go to children of his sister (my niece) after the death of my sister, Mary Railey, and my brother, S. B. Lane.
"A change in his (this nephew's condition) warrants this change in my will. Given under my hand this 15th day of December, 1936.
"Bessie B. Lane." On October 30, 1936, testatrix wrote another codicil to her will, but failed to sign it. It undertook to distribute certain personal articles, and was carried out by agreement of parties, as will be noted by the stipulation upon which the case was finally submitted.

The petition (in form of the declaratory judgment proceeding) was filed by S. B. Lane and W. H. Railey, individually and as executors of the will. The defendants were Mary Crit Lane Railey, a sister, the wife of W. H. Railey (in the will called Hunter), co-executor of the will, Mary D. Lane Hoch (in the will called Mary D. Lane), niece of testatrix, who with her husband and children, Nancy Lane and Louisa Hoch, infant defendants, resided in Michigan, and W. N. Lane, a non-resident defendant, to whom certain bequests were made in the body of the will, but who was eliminated in the codicil. He died on December 9, 1937, shortly after the death of testatrix, and his mother, Jennie Lane, intervened as his heir, adopting as her pleading the allegations of the answer of W. N. Lane filed November, 1937.

The petition was filed on September 8, 1937. On November 16, 1937, an amended petition set out the fact that there was another child of Karl and Mary Hoch, Karl Hoch, Jr. In report of warning order attorney, filed January 2, 1938, it is said he was one and one-half years of age.

An inventory filed April 30, 1937, showed that at the time of her death testatrix owned bonds and stocks, and the checks in issue as set out in the stipulation, infra.

The cause was submitted to the court for interpretation of the will upon the following agreed facts:

(1) On the dates of the original will, the unsigned codicil, and the later codicil, testatrix had not exceeding the sum of $25 in actual cash money.

(2) On the date of the will (May 20, 1936) the testatrix had to her credit in the Montgomery bank, $758.31. On October 30, 1936 (unsigned codicil), she had to her credit in the same bank, $2,339.69, and at the date of the codicil (December 15th same year) in same bank, $2,256.34. She did not have on the dates mentioned, or any intervening dates, any other bank deposits.

(3) The check for $2,665.87 represented such amount paid to the executors after the death of testatrix, by W. H. Railey, manager of the farm, being Miss Lane's interest in the proceeds from sales of tobacco and other crops raised on the farm during 1936, all of which were sold by Railey prior to the time of the death of the testatrix, except tobacco to the amount of $681.82, and sold within a week after the death of the testatrix.

(4) Miss Lane owned at the time of her death no property other than that disposed of by her will and codicil, unless it be the following items: 10 Carolina, Clinchfield & Ohio Railway bonds; two bonds 16 Court Street, Incorporated; 20 shares of Louisville Gas & Electric Company; 10 shares U.S. Steel Corporation, and which bonds and stocks are the subjects of this controversy.

(5) Testatrix owed at the time of her death $525, and her funeral expenses amounted to the sum of $625.

Silas B. Lane was seventy-three years old; was married October 1902; his wife is about sixty-one years old; he has no children and never had. An amended petition asserts that Mary Railey was then about sixty years of age.

W. N. Lane, unmarried, was in a hospital at the time the signed codicil was written, and at the date of testatrix' death, with what developed to be an incurable disease; he died in December, 1937.

All articles of personal property, including the stocks and bonds mentioned in the appraisement, were on hand and owned by testatrix at the time of the signing of the will and codicil, and the deposit in the Montgomery Bank, as set out hereinbefore. The Railey checks for proceeds of delayed tobacco sale were not given until after her death.

All indebtedness of testatrix, and all special devises made in the will, the executors have paid, except they have not paid the devises to Silas B. Lane, or to Mary Lane Railey; nor has any residue of cash been distributed.

In the division among the devisees of the tangible personal assets mentioned in the unsigned codicil, all have been delivered, as directed, by agreement of the parties, except that the diamond ring, mentioned therein as having been given to Mrs. Annette Lane, is subject to disposition under the will, or as the parties may subsequently agree. The allegations of the petition were admitted as being true, except in so far as same might conflict with the terms of the stipulation.

It is the contention of S. B. Lane that under the will the bank deposit, $2,032.09 the checks of $2,665.87, the $15 and all the stocks and bonds, should be and were intended by testatrix to be treated as disposed of as "cash" and he distributed as follows (after debts and funeral expenses): To S. B. Lane, $3,000; to Mrs. Railey, $3,000, and to S. B. Lane the balance thereof. He further claimed that if it be determined that stocks and bonds are not to be construed as "cash" then after expenses are paid out of the items $2,032.09, $2,665.87, and $15 he should receive $3,000 and the balance applied to the Railey bequest of $3,000. He also claims that under the codicil, in case he should survive his sister, he is entitled to one-half the proceeds arising from the Woodford County land during his survivorship.

Mrs. Railey contends that the stocks and bonds, and two checks, should not be considered as "cash", nor should they, nor the proceeds therefrom, be distributed according to the method set out by S. B. Lane. As to the check for the proceeds from the farm, sale of stock and crops, she contends that the will devised same to her. In reference to the stocks and bonds, and bank deposits, she contends that Miss Lane's will makes no disposition thereof.

W. N Lane and Mary Lane Hoch took the position that the stocks and bonds were not to be considered as "cash" under a proper construction of the will, since she "used the word in its ordinary sense," and that as to these items Miss Lane died intestate. They further contend that the bank deposit and the checks to executors should be treated as, and included in the word "cash," and that after payment of debts, funeral expenses and the payment of the devise to S. B. Lane, the balance of these cash items should be applied to the debt of Mary Railey, but that she would be limited to the balance of such "cash" after the payment to S. B. Lane. They assert that under the codicil S. B. Lane would...

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