Lee v. Gathright's Ex'r

• Decision Date: 23 June 1936
• Citation: 265 Ky. 148,95 S.W.2d 1065
• Parties: LEE et al. v. GATHRIGHT'S EX'R et al.
• Court: Kentucky Court of Appeals

95 S.W.2d 1065

265 Ky. 148

LEE et al. v. GATHRIGHT'S EX'R et al.

Court of Appeals of Kentucky

June 23, 1936

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Action by the Fidelity & Columbia Trust Company, executor and trustee of the estate of Owen Gathright, deceased, against Virginia G. Lee and others. From an adverse judgment, named defendant and others appeal.

Reversed with directions.

David R. Castleman, Sr., and David R. Castleman, Jr., both of Louisville, for appellants.

Bruce &amp Bullitt, Shackelford Miller, Jr., and A. C. Van Winkle, all of Louisville, for appellees.

THOMAS Justice.

Owen Gathright died testate on January 26, 1931, in the city of Louisville, Ky. the place of his residence. His will, with its numerous codicils, was duly probated after his death. Also an executor of his will was appointed, as well as a trustee for a trust fund created by him for the benefit of his sisters during their lives with the corpus after their deaths to go as directed. On November 24, 1934, the executor and trustee, Fidelity & Columbia Trust Company, filed this declaratory judgment action against all of the distributees and beneficiaries under the will, including the surviving widow, to obtain a construction of its terms and a direction as to its course in the conditions therein set forth, which were: That the general financial depression existing and prevailing throughout the country had resulted in a depletion of the value of the assets of the estate so as to render its total amount at that time insufficient to meet all general devices preceding the residuary clause. In other words, that such conditions had reduced the amount of the assets of the estate to such a point as that there would be no property to pass under the residuary clause, and even to the extent of reducing the total assets below the amount necessary to satisfy individual pecuniary legacies.

Such conditions appear to have been the principal cause for filing the action at the time it was done; but before the litigation was finally terminated by the rendition of the judgment appealed from on March 12, 1936, the assets of the estate under improved conditions had increased in amount sufficient to not only meet the individual bequests and legacies made in the will, but to leave a surplus to go to the residuary legatees. That condition was later manifested by an amended petition, and the chief basis for filing the action thereby vanished. However, and in the meantime, appellants and some of the defendants below, who received definite amounts of pecuniary legacies under the will, raised the question as to when such legatees were entitled to interest, they claiming the right to collect it from and after one year following the testator's death, and which contention was based on the provisions of section 2065 of our Statutes, saying: "If no time is fixed for the payment of a specific pecuniary legacy, it shall be payable one year after the testator's death, and carry interest after due." The residuary legatees denied that asserted right by insisting on a strict and narrow interpretation of that section, whereby it was confined to technical specific pecuniary legacies, and contended that it had no application to general pecuniary legacies payable out of the general funds of testator's estate. Learned counsel for appellants, however, combated that interpretation of the section and contended that it had been construed by this court in prior opinions to embrace the character of general pecuniary legacies such as was bequeathed to their clients by the Gathright will. The legal issue was thus sharply drawn and the court upon final submission denied appellants' interest on their pecuniary legacies, except from the time of the rendition of the judgment, and to reverse it they prosecute this appeal.

It must be admitted that a literal interpretation of the descriptive words of the section, defining the character of pecuniary legacies embraced by its terms, would seem to uphold the contention of appellees and also the judgment of the learned chancellor who tried the case, but we are confronted with decisions of this court construing the section to the contrary and in accordance with the contention of appellants. A partial list of those cases is: Grainger's Ex'rs and Trustees v. Pennebaker, 247 Ky. 324, 56 S.W.2d 1007; Harlan's Trustee v. Harlan, 228 Ky 73, 14 S.W.2d 397; Hood v. Maxwell, 66 S.W. 276, 23 Ky.Law Rep. 1791; Piper's Ex'r v. Adair, 64 S.W. 645, 23 Ky.Law Rep. 866; Redd's Adm'r v Redd, 58 S.W. 428, 22 Ky.Law Rep. 505, and Chamber's Guardian v. Chambers' Ex'rs, 87 Ky. 144, 7 S.W. 620, 9 Ky.Law Rep. 981. On the other hand, learned counsel for appellees cite and rely on the cases of Tagnon's Adm'x v. Tagnon, 253 Ky. 374, 69 S.W.2d 714, 715, Ballinger's Devisees v. Ballinger's Adm'r, 251 Ky. 405, 65 S.W.2d 49, 50, and Guthrie v. Guthrie's Ex'r, 168 Ky. 805, 183 S.W. 221.

An examination of the respective lines of cases each party relies on will reveal that the court was dealing with two separately distinct questions in the two lists of cases. In those relied on by appellees, it was in effect, and possibly explicitly, held that a pecuniary legacy, payable out of the general funds of the estate of the testator, should be treated as a general legacy in contradiction to a specific one in settling the rights of priority of payment when the assets of the estate were insufficient to pay all of the legacies provided for in the will; whilst in the cases cited and relied on by appellants' counsel the court seems to have taken a different view in determining the question as to the date for the commencement of the right of the legatee to draw interest on his legacy where that question was involved and was the one for determination. That holding is quite positively asserted in appellants' cited cases. On the other hand, this court in the cases relied on by appellees said that: "A specific legacy or devise is the gift by will of a specific article or piece of property capable of identification. As to personalty, it may be corporeal, an illustration of which would be the devise of a piano; or it may be one of incorporeal personalty, provided the amount is fixed and is directed to be paid out of a certain and specific fund." Ballinger Case, supra.

They also rely on this language taken from the Tagnon opinion "In determining whether a particular legacy is general or specific, the intention of the testator must prevail, and, in the absence of evidence in the will to the contrary, a legacy will be construed to be...