Miller's Ex'x v. Miller

• Decision Date: 21 June 1949
• Citation: 221 S.W.2d 654,310 Ky. 721
• Parties: MILLER'S EX'X v. MILLER et al.
• Court: Kentucky Court of Appeals

221 S.W.2d 654

310 Ky. 721

MILLER'S EX'X v. MILLER et al.

Court of Appeals of Kentucky

June 21, 1949

Appeal from Circuit Court, Nelson County; L. B. Handley, Judge.

Suit by Bernice K. Miller, executrix of the estate of Thomas J Miller, deceased, against S. Humphrey Miller and others for a declaratory judgment. Judgment for defendants and plaintiff appeals.

Reversed with directions.

Robert M. Spragens, Lebanon, for appellant.

T. C Carroll, Shepherdsville, for appellees.

VAN SANT, Commissioner.

On the 13th day of July, 1947, Thomas J. Miller died testate seised of personal property appraised at $39,000 and of real property appraised at $29,000. The farm on which Mr. Miller and his wife lived constitutes a part of the real estate. A part of the personal property consisted of livestock on the farm and corn in the crib, which had been harvested prior to December 31, next preceding his death. At the time of his death, there was a corn crop growing on the farm and which was harvested in the fall of 1947. By a general devise in his will, Mr. Miller bequeathed and devised to his wife a life estate in all of his property with remainder over to his collateral heirs. The widow was appointed executrix of the will, took possession of the property, and previous to December 31, 1947, fed the livestock bequeathed to her with the corn in the crib and thereafter fed to the stock part of the corn harvested beteen the death of her late husband and December 31 thereafter. The remaindermen protested the widow's right to feed the 1947 crop to the livestock without accounting for its value to the estate. Thereupon the widow, appellant herein, instituted this action under the Declaratory Judgment Act, section 639a-1 to 12 inclusive of the Civil Code of Practice, seeking a declaration of her rights under the will in several particulars. The Court declared her rights in respect to some of the questions presented and reserved a decision in respect to two others. The widow has appealed from the judgment in respect to his declaration that she should pay into the general fund of the estate the value of the crop used by her and harvested between the date of the death of her husband and December 31, 1947. Complaint likewise is made of the failure of the Court to declare her rights in respect to the two questions specifically reserved for future adjudication.

Appellees acknowledge appellant's right to use all crops harvested previous to her husband's death and retained on the farm for consumption by livestock owned by the testator at the time of his death. Thus the sole question for our determination is whether crops, consumable in their use growing on the farm of a testator at the time of his death if same should occur after March 1, and harvested before the thirty first day of December following his death, may be used by the life tenant to feed stock bequeathed to her for life, without accounting therefor to the remaindermen.

The language of the testator's will we are called on to construe is contained in two items and reads: 'Item 2. I give, bequeath and devise to my beloved wife, Bernice K. Miller, during her natural life, or so long as she remains my widow, all of my property, real, personal and mixed, wheresoever situate. After the death of my said wife, Bernice K. Miller, or in the event of her remarriage, I give, bequeath and devise all of my said property, real, personal and mixed, in equal shares to my eight sisters and brothers, of such brothers and sisters at this time (3) three being dead having issue, such issue to share only in such portion as would have been received by said brother and sister if living.

'Item 3. I direct that my old home and farm be not sold during the like of my wife, Bernice K. Miller. However, any other property that I possess can be sold at the discretion of my wife, Bernice K. Miller, proceeds from same to be invested in United States Government...