Maynard's Adm'r v. Maynard

• Citation: 285 Ky. 75,146 S.W.2d 343
• Parties: MAYNARD'S ADM'R ET AL. v. MAYNARD.
• Decision Date: 22 October 1940
• Court: Kentucky Court of Appeals

146 S.W.2d 343

285 Ky. 75

MAYNARD'S ADM'R ET AL. v. MAYNARD.

Court of Appeals of Kentucky

October 22, 1940

Rehearing Denied Jan. 28, 1941.

Appeal from Circuit Court, Fayette County; King Swope, Judge.

Suit between W. B. Maynard's Administrator de bonis non with will annexed and others and Ollie L. Maynard for the construction of a will. From the judgment, the former appeal.

Reversed with directions.

W. E Nichols, C. F. Kelly, and R. P. Moloney, all of Lexington for appellants.

Leer Buckley, of Lexington, for appellee.

STANLEY Commissioner.

The case presents the construction of the will of the late W. B Maynard, who died in December, 1927, in relation to the rights of his widow, and also the question of liability of the executor and subsequent administrator de bonis non with the will annexed, for interest on bequests tardily paid legatees. The material portions of the will are as follows:

"1. I direct that all my just debts and funeral expenses be paid out of my estate as soon as practical after the time of my decease.

2. I direct that my executor, hereinafter named, shall sell all of my real and personal property as soon as practical after the time of my decease and to convert the same into cash.

3. I hereby give, devise and bequeath to my beloved wife, Ollie L. Maynard, one-half of the proceeds of the sale of the personal property of my estate and an additional sum in cash which is equal to the cash value of her dowery interest in the real estate that I own at the time of my death, said dower interest to be calculated according to the most favorable Mortality Tables, my wife to have the said sum absolutely and in fee simple.

5. All the residue of my estate of every kind and description which I now own and have the right to dispose of at the time of my decease, I give, devise and bequeath to Essie Preece Earles. The reason for this bequest is that the said Essie Preese Earles is a niece of my deceased wife, Laura B. Maynard, and that my deceased wife and I, by our joint efforts, accumulated the estate which I now have."

The omitted portions consist of a preamble and several specific cash bequests, provision for the erection of a monument, and the nomination of the executor.

The suit was brought by the sole devisee and executor of the will of Mrs. Earles who died in 1935. The widow sought to have the will construed differently. She charged the personal representative had failed to recognize her full rights and pleaded its liability for interest on her bequest because it was not paid within the time designated by the statute.

The bequest to the widow is the equivalent of her statutory distributable share (Sec. 2132, Ky.Stats.) and clearly was made in lieu thereof, the only difference being that it should be paid in cash rather than a portion in kind. Recitation that the estate was the accumulation of the joint efforts of the testator's first wife and himself discloses an intention that her niece, Mrs. Earles, should receive a substantial part of the estate and that the widow should have what the law gave her, but in money, so that his estate would not be involved in joint ownership with the first wife's niece.

The trial court was of opinion that the will created an estate by way of jointure in the cash proceeds, free from the debts of the testator and from the costs of administration; that is, that the widow was entitled to one-half of the gross personal estate and the present cash value of one-third of the gross proceeds of the real estate. The decision was primarily rested on the construction of Section 2136 of the statutes, given in Tevis' Executors v. McCreary, 60 Ky. 151, 3 Metc. 151. The statute is as follows: "A conveyance or devise of real or personal estate, by way of jointure, may bar the wife's interest in the property and estate of the husband; but if made before marriage, without her consent, or during her infancy or after marriage, she may, within twelve months after her husband's death, waive the jointure by written relinquishment, acknowledged or proved before and left with the clerk of the county court, and have her dower or share of his estate as herein provided. When she so demands and receives her dower, or such share of his estate, the estate conveyed or devised in lieu thereof shall determine and revert to the heirs or representatives of the grantor, or devisor."

Section 2137 is as follows: "Where the wife is lawfully deprived of her jointure, or any part thereof, and not by any act of her own, she shall have indemnity therefor out of her husband's estate."

The term "jointure" means generally a competent livelihood for the wife in the husband's property, to take effect after his death. Grider v. Eubanks, 75 Ky. 510, 12 Bush 510. As stated in Pepper v. Thomas, 85 Ky. 539, 4 S.W. 297, 299, 9 Ky.Law Rep. 122, it means an estate conveyed or devised to the wife in lieu of dower, and "It must be in satisfaction of it; and, if transferred to her without any intention or purpose that it shall be so, it does not operate to bar her claim. If, however, the grantor or devisor intends the estate conveyed or devised as in lieu of dower, then it is a jointure, and so operates. The bar arises, not by operation of law, but from the express or implied intention of the husband."

Originally jointure took the form of conveyance to the husband and wife during their lives and after the husband's death to the wife. It seems that anciently such a settlement upon the wife was construed as entitling her to its benefits in addition to dower, but long ago in the history of our jurisprudence, during the reign of Henry the Eighth, it became the subject of a statute which is the genesis of our statute barring dower by a grant of jointure to the wife and giving her the right of election as between such a settlement and her distributable share under the law. 9 R.C.L. 598; Grogan v. Garrison, 27 Ohio St. 50; Jacobs v. Jacobs, 100 W.Va. 585, 131 S.E. 449; Tusing v. Tusing, 169 Va. 769, 194 S.E. 676.

Our jointure statute was first enacted in December, 1796. Littell's Digest Statute of Kentucky, page 444. It remained substantially the same down to 1894. Up to that time the statute related only to dower. It was amended (Acts 1894, Chap. 76, page 176) to cover all "the wife's interest in the property and estate of her husband." Opposite to that intended in the long ago, the purpose and effect of the statute would seem to be to protect the widow and prevent her husband from depriving her of the property rights given her by other provisions of the statute of descent and distribution. It gives the widow a right to elect to receive her statutory distributable share of her husband's estate, or to accept the property given to her by contract or conveyance or will. Cases involving post-nuptial contracts by which it was claimed the wife had agreed to accept less than her legal distributable share in her husband's estate are, Loud v. Loud, 67 Ky. 453, 4 Bush 453; Morgan v. Sparks, 108 S.W. 233, 32 Ky.Law Rep. 1196; Redwine's Ex'r v. Redwine, 160 Ky. 282, 169 S.W. 864, Ann. Cas.1917A, 58; Johnson's Adm'r v. Johnson, 231 Ky. 740, 22 S.W.2d 124. Cases holding that a conveyance or gift to a wife was in addition to and not in lieu of her distributable share in the estate are, Worsley's Ex'r v. Worsley, 55 Ky. 455, 16 B.Mon. 455; Yancy v. Smith, 59 Ky. 408, 2 Metc. 408. We are concerned in this case not with an election between accepting an estate of jointure or accepting dower in its general sense. We are concerned with an election between receiving her statutory share or accepting the benefits of the will.

As we have stated, the trial court followed Tevis' Ex'rs v. McCreary, 60 Ky. 151, 3 Metc. 151. In that case there was a specific bequest to the widow of $10,000, and of books, plate and furniture; a bequest to a brother of $3,000 in trust, and a residuary devise. Upon a settlement of the estate it was found the assets were insufficient to pay both specific legacies. The question was whether the deficit should be abated proportionately or the widow's bequest paid in full. Although the testator disclosed no intention of a preference, it was held that because of the statute relating to an estate by way of jointure the devise to the widow should be regarded as predicated upon a valuable consideration as for a debt owing from the testator or in consideration of the widow's relinquishment of her right to dower; therefore, her bequest of $10,000 should be paid without any deduction; otherwise she would be deprived of her estate by way of jointure and the statute (now Sec. 2137) declared that where that is the case she should be indemnified.

There is a distinction between that case and this one. The opinion does not disclose a direction by the testator to charge his entire estate with his debts as does the Maynard will we are now considering. Nor was the widow's bequest left indefinite and ascertainable only by a settlement of the estate or at least by the sale of the property. The two conditions make inapplicable the rule that a residuary legacy shall be first used to pay the debts and cost of administration, as applied in Grainger's Ex'rs and Trustees v. Pennebaker, 247 Ky. 324, 56 S.W.2d 1007. The Tevis case seems to have involved only the question of prorating the deficit after payment of debts between two specific legacies, one of which was to the widow, but the import of the...