Louisville City Nat. Bank v. Wooldridge

• Decision Date: 10 November 1903
• Citation: 76 S.W. 542,116 Ky. 641
• Parties: LOUISVILLE CITY NAT. BANK v. WOOLDRIDGE et al.
• Court: Kentucky Court of Appeals

76 S.W. 542

116 Ky. 641

LOUISVILLE CITY NAT. BANK v. WOOLDRIDGE et al.

Court of Appeals of Kentucky.

November 10, 1903

Appeal from Circuit Court, Jefferson County, Common Pleas Division.

"To be officially reported."

Suit by the Louisville City National Bank against Mary C. Wooldridge and others. From a decree in favor of defendants, complainant appeals. Affirmed.

Kohn Baird & Spindle and C. H. Shield, for appellant.

E. L McDonald and Humphrey, Burnett & Humphrey, for appellees.

BURNAM C.J.

On the 29th of March, 1898, the Louisville City National Bank brought a suit in equity against Charles F. Johnson, in which they allege that they had previously recovered a judgment against him for $11,979.10, with interest from the 13th of November, 1897, on which execution had issued directed to the sheriff, and which had been returned by him indorsed "No property found out of which to make this fi. fa., or any part thereof." The petition alleged that the defendant had in his possession, and in the possession of other persons whose names were unknown to the plaintiff money and property which was liable for their debt, and asked that he be required to appear before the court for examination as to the whereabouts of his property, and that same be subjected to their demand. They at the same time sued out a general attachment against the property of the defendant. On the 3d day of June, 1898, and while the suit of the bank against Charles F. Johnson was still pending, the wife of the defendant, Mary Lawrence Johnson, died, leaving her husband and Mary C. Wooldridge, her only child and heir at law, the wife of Powhatan Wooldridge. The will of Mary Lawrence Johnson was duly probated by the Jefferson county court on the 8th of June, 1898, with the consent of her husband, Charles F. Johnson, and is as follows:

"I, Mary Lawrence Johnson, do make this my last will and testament revoking all others.

"In view of the fact that my daughter, Mary C. Wooldridge, will inherit a large estate left me by my father and mother, I bequeath to her the small sum of five hundred dollars. I make this explanation in the beginning, that my will may not be considered unjust and peculiar. I leave my daughter Mary C. Wooldridge my carriage and horses, and the entire contents of my house during her life, at her death to be divided equally between my grandchildren. To each one of my four grandchildren, Powhatan Johnson Wooldridge, Annie Mary Wooldridge, Mary Tyler Wooldridge and Charles F. Wooldridge, I give and bequeath thirty shares of stock in the 'Columbia Finance and Trust Co.' At the death of any one of the four (being unmarried) his or her shares to go to the surviving brothers and sisters. The remainder of everything that I possess, I leave as a sacred trust to my daughter Mary C. Wooldridge, knowing that she will faithfully carry out my wishes regarding it. I desire that no inventory shall be taken of my effects. Mary Lawrence Johnson.

"Witness: C. B. Seymour, Geo. D. Todd.

"I appoint my daughter Mary C. Wooldridge my executor without bond. Mary Lawrence Johnson."

Indorsed below the signature of Mrs. Johnson were these words:

"I consent to all my wife has written in her will. Charles F. Johnson."

Simultaneously with the execution of this will, Mrs. Johnson executed in writing a paper defining the sacred trust referred to in the will, which reads as follows:

"I want Chamie [Mrs. Mary C. Wooldridge] to keep two pews in Christ Church as long as her father shall live just as I have done, and I want one of them kept in his name. I want her to give $100.00 to the Home of the Innocents in her father's name as long as he lives. I want her to use for her father's personal support such a part of the income from what I leave as in her judgment shall seem fit, but she shall be the sole judge as to how much or how little or whether any shall be applied in this way. I want her to care for my old servant Ammie Wright, when she shall become unfit for work, either from age or infirmities. The balance of the income I want her to use for the education of my four grandchildren. At the death of her father I want the principal put in trust for my four grandchildren. Chamie may sell and reinvest any part of my estate as she may see fit."

Mrs. Johnson at her death owned and was in possession of, besides her household furniture and belongings, stocks in various corporations, worth in the aggregate about $35,000 or $40,000. Mary C. Wooldridge declined to qualify as executrix of her mother's will, and her husband, Powhatan Wooldridge, was appointed administrator with the will annexed, and on the 17th of November, 1898, brought suit in the Jefferson circuit court against her heirs and creditors for the purpose of settling his accounts, and distributing the estate in accordance with the will of testatrix. Powhatan Wooldridge, after the institution, resigned as administrator with the will annexed, and J. W. E. Bailey was appointed in his place. Subsequently the defendants Mary C. and Powhatan Wooldridge filed an answer and counterclaim against the plaintiff Bailey as administrator de bonis non, in which they allege that Robert Tyler, the father of Mary L. Johnson and grandfather of Mary C. Wooldridge, had died possessed of a large estate, which he disposed of by will, and that, after making certain specific devises to his wife, Mary L. Tyler, it proceeds as follows: "All the rest and residue of my estate, that is my real estate I give and devise to my beloved wife, Mary L. Tyler, as trustee and in trust for each one of my daughters share and share alike, and for their separate use during their lives, and after their deaths respectively then for such child or children as they may respectively leave with full power to my said wife at any time to sell any part of said real estate, and invest the proceeds in other real estate whenever she may think it best to do so; but any purchaser shall not be bound to see the money invested and any property she may so purchase shall be held in trust as herein provided and as to the balance of my estate, I give the same to my said daughters share and share alike forever." They state that prior to 1859 a partition was made of the real estate subject to the trust, situated in Jefferson county, and that there was allotted to Mary L. Tyler, as trustee for her daughter Mary Lawrence Johnson, six separate lots and tracts of land, and that thereafter, at the request of Mary L. Johnson, all of these pieces of real estate were sold by the trustee, Mary L. Tyler, and the proceeds thereof turned over by her to Mary L. Johnson, and were by her appropriated to her own use, with full knowledge of the provisions of the will of Robert Tyler, deceased; that Mary C. Wooldridge was an infant under 21 years of age, and a married woman when the property was converted--and charge that the purchase money realized from the sale of this trust real estate aggregated $58,974, which she asserts as a claim against the estate of her mother. The answer also sets up other claims, aggregating $3,500, for money advanced for the use and accommodation of Mary L. Johnson during her life.

The Louisville City National Bank filed their answer in the settlement suit, which they made a counterclaim against the administrator, and a cross-petition against the Woolridges and Charles F. Johnson, in which they controvert the claims asserted both by Mr. and Mrs. Wooldridge, on several grounds. First, they deny the alleged conversion by Mrs. Johnson of the trust estate devised by the will of Robert Tyler; second they plead that the claim is stale, and barred by the lapse of time and statute of limitation; third, that even if the trust estate devised to Mary L. Johnson by her father, Robert Tyler, had been lost, it was through the negligence of Mary L. Tyler, the testamentary trustee, and the cause of action was against her, and not against Mrs. Johnson, who was a married woman; and that Mary L. Tyler had in her will devised a large amount of property to Mrs. Wooldridge upon the condition that she should not call in question the manner in which she had discharged the duties imposed upon her as trustee by the will of her deceased husband with reference to the trust estate; and that Mrs. Wooldridge had accepted the provision made for her, and was estopped from questioning the manner in which the trust had been administered. They also allege that Charles F. Johnson was by law entitled, as tenant by the curtesy, to one-half of the surplus of his deceased wife's personal estate, and that, in addition to this interest which descended to him under the statute, he was by the tenth clause of the will of Mary L. Tyler entitled to have paid over to him from the estate of his deceased wife $20,000. The tenth clause in the will of Mary L. Tyler is as follows: "I give to each of my daughters, Mary Lawrence Johnson, Ann Eliza Bent, Alice Bacon, Fannie S. Bayley, and Roberta Tyler, Twenty thousand Dollars, for their sole and separate use and benefit, to be forever free from the control, debts and marital rights of their present husband, and any either of them may ever have; and each of my said daughters shall have and is hereby given power and authority to dispose of the same by last will, or in any manner they may choose. But in the event that any one of all of my said daughters shall die before her or their present husband or husbands, the legacy given by this clause of my will to such daughter or daughters so dying shall pass to and vest absolutely in the surviving husband of such deceased daughter." They allege that Mrs. Johnson had no power, either under the statute which prevailed at the time she received the property disposed of, or at the time of her death, to make...