Levi v. Fidelity Trust & Safety Vault Co.

• Decision Date: 26 September 1905
• Citation: 88 S.W. 1083,121 Ky. 82
• Parties: LEVI v. FIDELITY TRUST & SAFETY VAULT CO.
• Court: Kentucky Court of Appeals

88 S.W. 1083

121 Ky. 82

LEVI v. FIDELITY TRUST & SAFETY VAULT CO.

Court of Appeals of Kentucky.

September 26, 1905

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

"To be officially reported."

Action by Lillie E. Levi against the Fidelity Trust & Safety Vault Company. Judgment for defendant. Plaintiff appeals. Affirmed.

E. L McDonald, for appellant.

Thos W. Bullitt, for appellee.

SETTLE J.

B. C Levi died in the city of Louisville, leaving a considerable estate, real and personal. He left no children, but was survived by his wife, Mary E. Levi. His last will, which was duly probated in the Jefferson county court, contained these provisions: "(1) I desire that all my debts of every kind shall be paid in full. (2) After my debts shall have been paid, I will and bequeath to my wife, Mary Ellen Levi all of my personal, real and mixed estate of every kind and description, to have and enjoy all the days of her life. (3) Previous to her death she may will or distribute to her relations and to my relations any property, real or personal, as she may choose or desire them to have. I am satisfied that she will act justly in this matter, but under no circumstances shall she be prevented or hindered in the enjoyment of any property or personalty that I may have at my death. (4) I desire that my friend, Captain Gilmore, shall act as trustee for my wife without bond or security."

Mary E. Levi did not, previous to her death, distribute to the relations of herself or husband any of the estate he devised her; but in December, 1893, she died, leaving a last will and testament, which has shortly thereafter probated. The will provides for the payment of several small pecuniary legacies which were satisfied out of her own personal estate; but the only part of it that concerns us is found in clause No. 3, which is as follows: "All the residue of my property, real, personal and mixed, and the property of my late husband of every kind except a cottage and lot in the Kavanaugh Camp Grounds, I devise to the said Fidelity Trust & Safety Vault Company, in trust, however, to take and sell the same with all convenient speed and proper and sufficient deeds to be given therefor and to distribute the proceeds to the following persons, towit: ***" The persons to whom the will of Mrs. Levi gave the property devised her by the will of her deceased husband, as well as the estate she otherwise owned, were all blood relations of herself and husband, though many of them were not next of kin.

It appears that Mrs. Levi left personal estate, in addition to what she received under the will of her husband, amounting to $4,800. There were four parcels of real estate, which had formerly been the property of the husband. It was all sold by appellee, the Fidelity Trust & Safety Vault Company, in pursuance of the power conferred upon it by Mary E. Levi's will, with the approval of the chancellor of the Jefferson circuit court; and the proceeds, aggregating $12,818.34, together with what was left of her personal estate after satisfying the small specific legacies, were by it distributed to the persons named in her will. Among the parcels of realty thus disposed of was a tract of land of 76 acres lying in Jefferson county, which was purchased by the appellant, Lillie E. Levi. A deed of conveyance was made her therefor by the Fidelity Trust & Safety Vault Company as "trustee under the will of Mary E. Levi". Upon the payment by her of the purchase price she was given immediate possession of the land, and has ever since continuously remained in the undisturbed possession thereof. It appears, however, that in attempting to consummate a sale of the land, recently made to another, appellant was met by the purchaser with the objection that the will of Mrs. Levi did not pass to the Fidelity Trust & Safety Vault Company a good and sufficient title to the land, and that in consequence the deed from it as trustee to appellant did not convey to her a good and valid title, and because of these supposed defects in her title the purchaser declined to accept the deed tendered or to take the property. Thereupon appellant instituted this action to cancel the deed made her by the Fidelity Trust & Safety Vault Company, rescind the contract of sale, and recover of it the purchase price paid by her therefor. The chancellor adjudged that appellant received through the deed from appellee, Fidelity Trust & Safety Vault Company, trustee under the will of Mary E. Levi, a good and valid title to the land in controversy. Consequently the action was dismissed. Not dissatisfied with, but questioning, the correctness of the chancellor's conclusions, and especially his construction of the will of B. C. Levi, appellant asks of us a consideration and review of the question of title involved.

The objection to the title of appellant is bottomed upon the theory that Mrs. Levi, in distributing to his and her relations the property devised her by the will of her husband, was limited to their next of kin, equally; whereas the disposition made of it by her will, while equal (that is, giving one half to his and the other half to her relations) was not to the next of kin, but in the main to those related to them in a remoter degree. Although at the death of Mrs. Levi her deceased husband had six brothers living, also several nieces and nephews, children of a deceased brother, her will gave portions of the estate to but two of the brothers, one of the children of the deceased brother, and two of the nieces of her...