Menefee v. Sleet

• Decision Date: 05 June 1917
• Citation: 176 Ky. 126
• Parties: Menefee v. Sleet.
• Court: Kentucky Court of Appeals

176 Ky. 126

Menefee v. Sleet.

Court of Appeals of Kentucky.

Decided June 5, 1917.

Appeal from Kenton Circuit Court (Criminal, Common Law and Equity Division).

B. F. MENEFEE for appellant.

TOMLIN & VEST for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Affirming.

In 1881 Dr. W. W. Henderson made and published his last will, which, upon his death shortly afterward, was duly probated. He left surviving him his widow and two infant children, Jessie B., a daughter, and George, a son.

In the first clause of his will he provided that "After the payment of my debts and the special devises that may be hereinafter mentioned, I desire and direct that my entire estate, subject to the conditions &c hereinafter stated, shall go one-third part thereof to my wife absolutely to her, and the other two-thirds thereof to my two children, Jessie B. Henderson and George Henderson, or the survivor of them at the time of the making of the division of my said estate, subject &c to the conditions &c hereinafter stated."

In the second clause he directed that a division of his estate should be made by his executor and executrix within five years after his death. In the third clause he provided that if either of his children should be dead when the division was made, or if either of them should die without lawful issue before the age of twenty-one, then his or her one-third share should go to the survivor, and if both should die before attaining the age of twenty-one without lawful issue, then the estate should go to his heirs at law under the statute of descent and distribution.

In the fourth clause he provided that "My executor and executrix are to hold the estate as aforesaid, going to my children as trustees in trust for my son's part until he is 21 years of age, if he should live so long; and for my daughter, her part, as separate estate, to be as such so long as she lives, for her support and maintenance, and which the profits thereof are to be free from the control of any husband she may have, and not in any way subject to his contracts or debts. All of my estate devised to my daughter is to go and be as separate estate."

In another clause he appointed his wife and Hayden Kendall as executrix and executor. It appears that Hayden Kendall did not qualify, but that his wife did.

Thereafter, a suit was brought, all proper parties being before the court, in which, by the judgment of the court, there was set apart to the widow, as trustee, and the two children a farm of 345 acres in Kenton county. Mrs. Henderson, the widow, continued to act as trustee until her death in 1894, and after her death her sister, Georgie B. Bright, was appointed executrix and also trustee, and qualified as such.

In 1899 Georgie B. Bright, as trustee, and Jessie Henderson Colville and her husband, and George Henderson, who was an unmarried man, executed a deed to one George W. Sleet for this tract of...