Louisville Presbyterian Theological Seminary v. Fidelity Trust & Safety Vault Co.

• Citation: 68 S.W. 427,113 Ky. 336
• Parties: LOUISVILLE PRESBYTERIAN THEOLOGICAL SEMINARY et al. v. FIDELITY TRUST & SAFETY VAULT CO. et al. [1]
• Decision Date: 16 May 1902
• Court: Court of Appeals of Kentucky

68 S.W. 427

113 Ky. 336

LOUISVILLE PRESBYTERIAN THEOLOGICAL SEMINARY et al. v. FIDELITY TRUST & SAFETY VAULT CO. et al. ^[1]

Court of Appeals of Kentucky.

May 16, 1902

Appeal from circuit court, Jefferson county, common pleas division.

"To be officially reported."

Action by the Fidelity Trust & Safety Vault Company, executor of the will of Florence Irvin Botto, against the Louisville Presbyterian Theological Seminary and others for a construction of the will of plaintiff's testatrix. Judgment construing will, and the Louisville Presbyterian Theological Seminary and others appeal. Affirmed.

Thos W. Bullitt, Wm. Marshall Bullitt, and Pirtle & Trabue, for appellants.

Rodman & Grubbs, Richards & Ronald, Grubbs & Grubbs, O'Neal &amp O'Neal, Leopold & Pennebaker, and Dodd & Dodd, for appellees.

DU RELLE, J.

The Fidelity Trust & Safety Vault Company, as executor of the will of Florence Irvin Botto, brought suit for the construction of certain clauses of her will. By the will of James F. Irvin his widow, Florence, was given power by last will to dispose of his estate. She executed a last will under this power of appointment, married William M. Botto, died childless, and her will was duly admitted to probate. She left legacies to 21 persons and corporations, aggregating $236,000. Clauses 1 and 2 direct the payment of debts and care of family vault. Clause 3 makes various specific legacies of jewelry and other personalty. Clauses 4-19 give 16 general or pecuniary legacies, aggregating $182,000, as follows: Belle C. McVay, $15,000; Phillip T. Chinn, $3,000 Second Presbyterian Church, $10,000; Chas. R. Hemphill $15,090; Home of the Innocents, $5,000; Young Men's Christian Association, $10,000: Louisville Presbyterian Theological Seminary, $10,000; Polytechnic Society of Kentucky, $10.000; Cloteal B. Botto, $15.000; Rodman Grubbs, $15,000; Irvin Lindenberger, $10,000; Anna Foster, $8,000; Louisville Presbyterian Orphanage (in trust), $10,000; Home for Infirm Colored People (in trust), $1,000; Norton Memorial Infirmary (in trust), $10,000; Wm. M. Botto (in trust), $35,000,--$182,000. Clause 20 gives to the Fidelity Trust & Safety Vault Company, as trustee, $6,000, in trust, to pay the income thereof to Jane Ballard during her life, with the further provision that "at her death said fund shall go to Mrs. Belle McVay, Mrs. Cloteal Botto, and the Louisville Presbyterian Theological Seminary, as part of the residuum under the 26th clause of this will." Clauses 21 to 24, inclusive, in exactly similar language to that used in clause 20, provide for like trusts to the Fidelity Trust & Safety Vault Company in favor of Alex McHarry, Jane Jackson, Jemima Johnson, and Mary Costello, to pay them the income upon $12,000 each during their respective lives, with the same provision for the disposition of the fund at their deaths, respectively. Clause 26 is as follows: "All the balance of said estate in possession, reversion, and remainder, including both my own and the estate which I have the right to dispose of under the will of my said husband, I devise and bequeath to Mrs. Belle McVay, Mrs. Cloteal Botto, and the Louisville Presbyterian Theological Seminary, in fee simple absolute, in the proportions of one-eighth (1/8) to Mrs. Belle McVay, one-eighth (1/8) to Mrs. Cloteal Botto, and three-fourths (3/4) to the Louisville Presbyterian Theological Seminary." Jane Jackson, the cestui que trust under clause 22, died before the testatrix. Alex McHarry, the cestui que trust under clause 21, died after the testatrix, and after the original petition was filed in this case. The other cestuis que trustent are still alive. While the legacies given to the 21 legatees aggregate $236,000, it appears that the net value of the estate, after the payment of debts, costs, etc., will be less than $160,000. The legacies must, therefore, abate.

On behalf of Mrs. McVay and the seminary, who may be termed remainder-men in clauses 20 to 24, inclusive, it is insisted that at the death of Jane Jackson and the other cestuis que trustent, who may be termed life tenants, the remainder, after abatement, on account of the deficiency in the estate, of the funds wherein they take a life interest, should go absolutely to Mrs. McVay, Mrs. Cloteal Botto, and the seminary, in the proportions designated in clause 26, viz, one-eighth to Mrs. McVay, one-eighth to Mrs. Cloteal Botto, and three-fourths to the seminary. On the other hand, the other legatees insist that, as each life tenant dies, the principal fund must go to pay the deficiency in the remaining legacies, including the other trust funds, under clauses 20 to 24, inclusive, and that it is only after the whole $236,000 of legacies are paid in full that the three remainder-men are entitled to any part of the funds held in trust under those clauses. As the estate is sufficient to pay only about 60 per cent. of the legacies, independent of the sums named in these five clauses, and only about 78 per cent. if those funds are used to pay the deficiency in the general legacies, it is evident that, if the second contention is sustained, the remainder-men will take nothing by virtue of these clauses, except in so far as the legacies directly to them are increased by those funds being used to make up the deficit. The question for decision is the construction of these five clauses,--20 to 24, inclusive. The chancellor decided that Belle McVay, Cloteal Botto, and the seminary were not entitled, under the twenty-second clause of the will, to the fund devised to Jane Jackson for life, and that no fund should be set aside for distribution under that clause; that they were not entitled under the twenty-first clause to the fund devised to Alex McHarrry for life, and that the fund devised to him is to be treated, from the date of his death, as a part of the estate for general distribution among all the legatees under the will; and that, at the respective deaths of Jane Ballard, Jemima Johnson, and Mary Costello, the funds held for their benefit should be applied, ratably, to the payment in full of all the other legacies, including those of such life tenant or tenants as may be alive at the date of such death; and after the payment in full of all such legacies, with interest, the surplus is to pass as residuary estate under the twenty-sixth clause of the will. As before stated, there will be no surplus. Mrs. McVay and the seminary have appealed. Mrs. Cloteal Botto did not unite in the appeal, but by her counsel asks the same construction which is desired by appellants.

The question for decision is, in what capacity do Mrs. McVay and the seminary take the remainders after the death of the life tenants? Do they take as residuary legatees, receiving no part of the remainder left to them? or do they, as remainder-men, take the remainders free from the claims of the other general legatees? The thanks of the court are due to counsel for the manner in which they have presented both sides of this question. With great ability counsel for appellants maintain the proposition that Mrs. Florence Botto believed the estate devised would pay in full all the legacies and leave a substantial residuum, independently of the principal of the five trust funds, and that the bequest of these funds to the three remainder-men named was intended to be a gift thereof as a whole, in addition to that indeterminate, but certain, residuum.

The difficulty of the question before us arises in great part from the fact that the testatrix did not believe the estate to be insufficient to pay the legacies in full and leave a residuum, and therefore made no provision to show what legacies she desired to abate, or the proportion in which she wished them to be abated, in the event the estate should prove insufficient. Her intention was, undoubtedly, that each of the legatees should be paid in full. She intended that there should be a residuum, and that the residuum should be apportioned between the residuary legatees in the proportions stated. But the estate was insufficient to pay even the general or pecuniary legacies, and the court is, therefore confronted with a condition which the testatrix did not consider at all. The general rule of construction in such cases is thus stated in Page, Wills, § 772: "Testator's will does not, however, often contain provisions directing the course in which legacies given shall abate, since testator rarely contemplates the possibility of his estate failing to pay his debts and legacies in full. In the absence of specific provisions in the will, the law must provide in what order the different classes of legacies shall abate. This result is reached by general rules which are intended to express and enforce the probable intention of the average testator. It is another of those difficult cases where the courts must determine the intention of testator upon a subject upon which he never had any intention. If testator's estate is sufficient to pay off all his legacies and devises in full after paying debts, the legacies given in the residuary clauses abate first. No payment can be made to residuary legatees until all other legacies have been paid in full. *** The reason underlying this rule is that, as testator bequeaths in a residuary clause only that part of his property left after the payment of the bequests and devises previously given, his intention will be best given effect by using the residuum first in paying testator's debts. The purposes of all these rules is to approximate testator's intention as it would probably express itself if he had been aware of the actual relation of the value of his property to the amount of his debts, since it is impossible to give literal effect to the testator's intention." Now, it is contended for appellant that,...