Muth v. Goins

• Decision Date: 22 May 1923
• Citation: 250 S.W. 995,199 Ky. 321
• Parties: MUTH ET AL. v. GOINS ET AL.
• Court: Kentucky Court of Appeals

250 S.W. 995

199 Ky. 321

MUTH ET AL. v. GOINS ET AL.

Court of Appeals of Kentucky.

May 22, 1923

Appeal from Circuit Court, Meade County.

Suit by Rosa Muth and others against Selma Goins and others for construction of a will. From a judgment construing the will adversely to their claims, plaintiffs appeal. Affirmed.

L Frank Withers, of Louisville, for appellants.

Selligman & Selligman and Walter S. Lapp, all of Louisville, for appellees.

CLAY J.

George E. Muth, who died in the year 1918, left the following will which was probated in the Meade county court:

"I George E. Muth, of Muldraugh, Ky. being of sound and disposing mind and memory, do make this my last will and testament, hereby revoking all former wills ever made.

First. I desire my wife, Rosa Muth, to become executrix of my will and to carry out its provisions to the best of her ability, also wish, that she may not be required to give bond or security.

Second. Should I at the time of my death possess $1,000, or more, then I wish that $100 be given to each of the children of my present wife, and $50 to each of the children of my late wife. After my bequests and just debts are paid, I leave the balance of my money to my wife, Rosa Muth.

Third. I wish that my wife and children, viz. Kriss, Emil, Augusta, Martha and Julius, shall continue to live on the farm until May 3, 1928, when Martha shall become of age, after which date the farm may be sold and the proceeds divided equally amongst my present wife and children.

With love towards my family and friends, I remain sincerely and sign my name to this my last will, Dec. 31st. 1916."

The testator was married twice. By his first wife he had four children, three of whom are now living. By the second wife, who survives him, he had five children, all of whom are living. His estate consisted of personal property worth about $2,000 and a farm containing 132 acres. Shortly after the death of the testator the farm, with the exception of five acres, was condemned by the United States government for use for encampment purposes. The purchase price, amounting to $6,892.67, was paid in the registry of the United States Court for the Western District of Kentucky for distribution among those entitled thereto under the foregoing will.

This suit was brought by the widow and children of the second marriage against the children of the first marriage for a construction of the will. The chancellor was of the opinion that the testator intended that his widow and her children should occupy the farm until her youngest child became of age, at which time the farm should be sold and the proceeds equally divided among all of his children and his widow, the latter taking a child's part. Inasmuch, however, as the widow and her children were entitled to occupy the farm until her youngest child became of age, he adjudged that until that time they were entitled to all the profits arising from the fund of $6,892.67, and that this fund should be placed in the hands of a responsible trustee to preserve until that time, when it should be distributed as above indicated. From that judgment this appeal is prosecuted.

Certain witnesses deposed that the testator was not on friendly terms with his children by his first wife, and that he stated to them that he intended to give, or had given, all of his property to his children by his second wife, and did not intend for his children by his first...