Lincoln Bank & Trust Co. v. Bailey

• Decision Date: 10 November 1961
• Citation: 351 S.W.2d 163
• Parties: LINCOLN BANK & TRUST COMPANY, Administrator, etc., Appellant, v. Ethel Wilder BAILEY et al., Appellees. Ethel Wilder BAILEY et al., Appellants, v. LINCOLN BANK & TRUST COMPANY, etc., Citizens Fidelity Bank & Trust Company, etc., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 163

351 S.W.2d 163

LINCOLN BANK & TRUST COMPANY, Administrator, etc., Appellant, v. Ethel Wilder BAILEY et al., Appellees.

Ethel Wilder BAILEY et al., Appellants, v. LINCOLN BANK & TRUST COMPANY, etc., Citizens Fidelity Bank &

Trust Company, etc., Appellees.

Court of Appeals of Kentucky.

Nov. 10, 1961.

Leo T. Wolford, Eugene B. Cochran, O. Grant Bruton, Middleton, Seelbach, Wolford, Willis & Cochran, Louisville, for Lincoln Bnak & Trust Co.

James W. Stites, James W. Stites, Jr., Louisville, for Citizens Fidelity Bank & Trust Co.

Squire R. Ogden, Richard F. Newell, John T. Ballantine, Ogden, Brown, Robertson & Marshall, Louisville, for Ethel Wilder Bailey.

PALMORE, Judge.

James B. Wilder died testate in 1888, survived by two sets of grandchildren, being the five children of his deceased son, Graham Wilder, and the four children of his deceased daughter, Emma Wilder Hast. This is an action to construe paragraphs 6 and 7 of his holographic will, by which the residue of a substantial estate was left in trust for the benefit of the nine grandchildren and their descendants until 21 years after the death of the last survivor among the grandchildren, at which time the corpus is to be distributed.

All of the grandchildren are now deceased except for Ethel Wilder Bailey, one of the five children of Graham Wilder. Her deceased sister and brothers are survived by a number of descendants. But all four of the Hasts died without issue, and what becomes of the 4/9 interest of which they were the beneficiaries is the issue in this case.

Louis Hast died intestate and unmarried in 1905, survived by his three sisters, Emma, Etta and Lisette. Emma died in 1942, leaving her estate by will to Etta and Lisette. Etta died in 1944, leaving her estate by will to Lisette. Lisette died in 1958, and her will left in trust for certain charitable purposes whatever interest in the Wilder estate was subject to testamentary disposition by her. Her personal representative takes the position that she was able to will a 4/9 interest in the income and corpus. The chancellor rejected this theory and held that upon extinction of the Hast line the 4/9 interest of which its members theretofore had been beneficiaries simply became a part of and thereby enlarged the interests of the Wilder line. We agree with that conclusion.

Here, with emphasis added, is the pertinent language of the will:

'6th I give devise and bequeath * * * in trust for my grand children (My children both being dead) To wit, Emma Hast Lizette Hast, Etta Hast and Louis Anderson Hast, and Nellie Wilder, James B. Wilder Jr, Oscar Wilder, Ethel Wilder and Edward Wilder Jr, all the residue of my Estate, real personal and mixed, and direct that it shall be held together as a whole, except such as I may hereafter direct or authorise to be disposed of, until twenty one years after the death of my said grand children, who may be alive at my death, and the last survivor of them, when it shall be divided among the descendants of said grand children or it may then be sold and the proceeds divided as aforesaid, the shares of any one or more of them, having died without issue to go to his or her brothers and sisters or descendants, or if any be dead leaving descendants, such descendants to take the share of such grand child * * *.'

'7th * * * the whole of said net profit of said Estate as aforesaid shall after paying Taxes assessments insurance &c and my said daughter in law her said annuity, be equally divided among all my grand children, The shares of those under age going into the hands of their respective guardians or trustees and the shares of such as may be then dead going to their descendants if any, or if any be dead at the date of such divission of income without leaving lawful issue, the same shall go to the surviving brothers and the sisters, which disposition of said net profits shall continue untill the time fixed for final distribution herein. No beneficiary under this Will, shall sell Mortgage or pledge or by any means anticipate his or her share of said income or of the principal of said estate, until after the general divission thereof, Nor shall the same be subjected by legal process to the payment of his or her debts and if either shall sell mortgage, pledge or anticipate his or her income or principal or attempt to do so, or if any court of final resort shall adjudge either such income or principal of said Estate liable for the payment of his or her debts, prior to said divission, the interest of such ones shall become forfeited and cease and the share of such thenceforth shall pass and belong to the legatees under this Will who shall not have incured such forfeiture and the parts there of going to the Females shall be for their sole and separate use and free from the debts and control of any of their husbands * * *.'

All the parties are agreed on the principle that the will must be construed according to the testator's intent, gathered from what he did say in the instrument as distinguished from what the court thinks he would have said if he had considered the problem now before it. And though they are not further utilized in this opinion, we give full recognition as well to the familiar rules of construction favoring testacy over intestacy, absolute over qualified estates, and early vesting as against contingent rights. All of these, however, apply only where there is real doubt as to what the testator intended by what he said. They cannot be hoist by their own petard to achieve a result repugnant to the testator's legitimate objectives as the court is able to recognize those objectives from a reading of the instrument itself.

The chancellor has given the parties and this court the benefit of an extremely able written opinion in which he concluded that no one has a vested interest in the corpus until the...