Miller, by Her Committee v. Keown, Exor.

• Decision Date: 05 June 1917
• Citation: 176 Ky. 117
• Parties: Miller, By Her Committee v. Keown, Executor, et al.
• Court: Kentucky Court of Appeals

176 Ky. 117

Miller, By Her Committee v. Keown, Executor, et al.

Court of Appeals of Kentucky.

Decided June 5, 1917.

Appeal from Ohio Circuit Court.

D. H. FRENCH, M. L. HEAVRIN and A. D. KIRK for appellant.

BARNES & SMITH for appellees.

OPINION OF THE COURT BY JUDGE THOMAS — Reversing on both appeal and cross-appeal.

Dr. R. A. Miller died a resident of Ohio county on December 23, 1913, leaving the appellant, Margaret E. Miller, his widow, surviving him. They had been married since about 1870, and had no children. At the time of his death Dr. Miller was about 72 years of age and his widow about 70 years old.

On May 6, 1913, the decedent prepared and subscribed his holographic will, the substance of which was that he devised the home in which he lived in Fordsville, Kentucky, together with the furniture therein, to his widow, but provided that if she could not live in the house or find a suitable companion to live with her that the property should be sold "and the proceeds be applied to the cash fund"; that his widow be paid out of such cash fund the sum of $25.00 per month so long as she might live, and the portion of the fund remaining at her death, if any, he disposed of to his sister and her son and her two grandchildren in a way that does not concern the questions presented by this record.

The home at Fordsville was a modest building located upon a small lot, and under the proof is worth about the price paid for it, $700.00. The deed to it was obtained on May 14, 1912, and in both the granting clause and the habendum clause the decedent, Dr. Miller, is designated as the sole grantee. Just preceding the habendum and following the description there is this clause shown to have been inserted at the instance and request of the decedent: "It being further understood that in case of the demise of party of second part, his wife, Margaret E. Miller, being the longest liver, then the above property is to belong to her absolutely."

The appellee (plaintiff), Floyd Keown, a nephew and devisee of the testator, was the named executor in his will, and he, directly after the testator's death, presented the will to the county court of Ohio county for probate, which was done by judgment of that court, and plaintiff executed bond and qualified as executor of it. Shortly after his qualification as such executor he brought this suit against the widow and other devisees in the will for the purpose of obtaining a construction of it and the direction of the court as to how he should execute the trust.

It is alleged in the petition that there exists grave doubts as to whether the testator intended to devise to his widow a fee simple title to the house and lot in question, and as to whether she should be paid $25.00 per month throughout her life if she continued to occupy the house.

It is further alleged, and is indisputably established by the evidence, that the widow was of unsound mind and incapable of renouncing the will, if it was her interest to do so, or of looking after and managing the estate, and in addition to the prayer for a construction of the will the court is asked to appoint a committee for her, or take such other steps as may be necessary to protect her interest.

Shortly after the filing of the suit, and within a month or so after the will had been probated, the appellant, R. I. Miller, a nephew of the widow, was by a judgment duly rendered after hearing appointed committee for her, and he filed answer in which he insisted, (first) that the widow had absolute title to the house and lot under both the terms of the will and because of the clause, supra, in the deed, and (second) that she was also entitled to it, as well as to the personal property which the decedent owned at the time of his death, amounting to about $3,300.00, because, as he claimed, all of the property which the decedent had at the time of his death, including the house and lot, was accumulated from the inheritance which Mrs. Miller obtained from her father's estate as early as 1871. At that time she sold a small tract of land which she inherited from her father in Oldham county for $500.00, which it is alleged she delivered to her husband.

In 1899 a vacant lot was purchased in Elizabethtown, Kentucky, for $600.00, the title to which was taken in the name of Mrs. Miller, and directly afterward a dwelling and other structures were erected upon the lot with proceeds, so far as this record shows, belonging to the husband. In 1908, that property was sold for $3,500.00, and the husband collected the proceeds.

From these facts, it is insisted by the committee for the widow that she is entitled to all of the property because her husband held title to same as her trustee; or, if this is not true, that his estate is indebted to her in the sum of $3,500.00, the value of the house and lot sold in Elizabethtown.

Appropriate pleadings put in issue all of these claims, and upon final hearing the court adjudged that the widow has the absolute title to the house and lot in Fordsville, and the executor was directed to pay to her committee the sum of $20.00 per month until further orders of court, and she was furthermore adjudged to be entitled to $500.00 from her husband's personal property, which the executor was directed to pay to her committee, which $500.00, we surmise (there being nothing in the record to show) was in satisfaction of the $500.00 which the husband had theretofore obtained from the wife.

In addition to what has been stated, the committee alleged in the answer that he had, after his appointment and qualification, renounced the terms of the will for and on behalf of the widow, as is provided by section 1404 of the Kentucky Statutes, and he filed with his answer a copy of such renunciation duly acknowledged by him before a notary public, and which had been previously filed in the county court of Ohio county, and he asked that if the other relief which he sought could not be obtained that his renunciation be either confirmed by the court, or that the court itself make such renunciation for his ward.

From the judgment the widow, by her committee, prosecutes this appeal, and the executor has obtained a cross-appeal in this court.

The insistence of the committee is that the court erred in not adjudging to the widow the absolute ownership of all of the personal property; and in refusing to allow her $25.00 per month instead of $20.00, and he also complains of the allowance made to the executor of $290.30, and to his attorneys of a fee of $300.00. The judgment furthermore allowed to the committee's attorney a fee of $300.00, $200.00 of which was to be paid out of the estate of the decedent and the remaining $100.00 to be paid out of the property adjudged to the widow.

By the cross-appeal the executor seeks a reversal of the judgment because the widow was adjudged to have absolute title to the house and lot, and was also adjudged to be entitled to the $500.00 ordered to be paid to her committee.

Much discussion is indulged in by counsel for both parties upon the questions presented, including the construction of the will, the effect of the clause in the deed and the collection of the $3,500.00 purchase price of the house and lot in Elizabethtown by the husband, and perhaps others, but under the view which we take of the facts as presented by the record we do not feel called upon to determine any of those questions, for we are convinced that it was the duty of the court, under the facts presented, to have renounced the terms of the will on behalf of the widow, or to have given its endorsement to the renunciation made by the committee, for we are convinced that the testator was the owner of the property free from any claim of his wife as cestui que trust, or otherwise. The only property of the wife, if any, which the husband ever appropriated, according to the record, was the $500.00 which she obtained for land inherited from her father as far back as 1871, long before the Weissinger act of 1894 became a law. At that time the law did not make the wife's property her separate estate, and her personal property when reduced to possession by the husband became absolutely his. There is not an intimation that he took possession of her property, if he did at all, under any sort of agreement or promise to reimburse her or to hold it in trust for her. This prevents this case from coming within the rule announced in the case of Bohannon v. Bohannon, 29 Ky. Law Rep. 143, referred to and discussed in Morgan v. Lewis, 172 Ky. 813, and similar cases. Therefore, when in 1899 the lot was purchased in Elizabethtown and the...