Owens v. Owens' Ex'r

• Citation: 32 S.W.2d 731,236 Ky. 118
• Parties: OWENS v. OWENS' EX'R.
• Decision Date: 18 November 1930
• Court: Court of Appeals of Kentucky

32 S.W.2d 731

236 Ky. 118

OWENS v. OWENS' EX'R.

Court of Appeals of Kentucky

November 18, 1930

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Declaratory judgment proceeding by Mary Jeanette Owens' executor. From a declaratory judgment defining the rights of certain devisees under the will, Eugene M. Owens appeals.

Modified and as modified, affirmed.

Shackelford Miller, Jr., and Neville Miller, both of Louisville, for appellant.

H. M Peckinpaugh and Fred Forcht, both of Louisville, for appellee.

WILLIS J.

Eugene M. Owens has appealed from a declaratory judgment defining the rights of certain devisees under the will of Mary Jeanette Owens.

The will devised the real estate to a sister and two brothers for life, and disposed of the estates in remainder as follows:

The parcel left to Eugene M. Owens was devised "at his death, or its reinvestment, if it has been sold," to his children, if any. If he is survived by no child or children it then goes to the "Educational Fund" and the "Federal Monument Fund" created by the will.

The parcel left to George W. Owens was devised "at his death, or the reinvestment if it has been sold, to his two daughters, Alma Bruce Kavanaugh and Anna Louise Owens Waggoner," in equal parts.

The other lot left to Atta Owens Tinsley, was to go "at her death, or its reinvestment, if it has been sold, to her daughter, Elizabeth Tinsley Campbell."

The personal estate was disposed of by this provision:

"Any stocks, bonds, mortgages, or other investments I may own at the time of my death, are to be divided equally between my brothers: George W. Owens and Eugene M. Owens, and my sister, Atta Owens Tinsley, during the terms of their natural lives, and at their death, they, or their reinvestments, are to be divided as was directed in the division of the real estate above mentioned. That of George W. Owens is to become the property of Alma Bruce Owens Kavanaugh and Anna Louise Owens Waggoner; That of Atta Owens Tinsley is to become the property of Elizabeth Tinsley Campbell; that of Eugene M. Owens to revert to the Educational Funds and Federal Monument Funds, to be mentioned later in the will."

The provisions of the will respecting the two trust funds were as follows:

"I will now go into the details of the Funds to which I referred: The Real Estate and Invested Money I left to Eugene M. Owens, the cashed Accident and Life Insurance Policy, and any money not accounted for--shall go to two separate Funds: an Educational Fund, and to a Federal monument Fund.

I will that both Funds be placed in the Liberty Insurance Bank where by proper investments they may accrue interest. The Educational Fund is to educate many useful and patriotic citizens who will be an honor to the United States of America; I trust the Educational Fund will grow larger and larger; and last indefinitely--forever. The Educational Fund is to work as soon as possible. Education is worth paying for, if it is worth anything. Those who apply for Educational Funds must be worthy, and must promise to repay what they borrow--unless some unavoidable calamity prevents. This fund is for worthy American boys and girls, and men and women, white, black, or red (Caucasian, African or Indian.) The Educational Fund is to be placed in the Liberty Insurance Bank which will control it forever, or indefinitely.

The Federal Monument Fund will be placed in the Liberty Insurance Bank where it will accrue interest until the Fund is large enough to erect a Federal Monument in some prominent place in Louisville, Kentucky, such a monument as her citizens will be proud of, and that it will incite such principles in her young that they will become true, patriotic and noble citizens.

The Monument is to have four busts, or four statues: George Washington, Abraham Lincoln, Thomas Jefferson, and Andrew Jackson--And a Statue of a Federal soldier. I want on it, 'United We Stand, Divided We Fall,' I want a flag--The Stars and Stripes--the American flag to fly near it. I want no expense spared. The Fund is to grow until sufficient to erect an admirable monument. I wish a sufficient Fund reserved to pay for the Flag to fly daily and forever."

The other provisions of the will are not the subject of controversy, and need not be noticed.

The circuit court held that the life tenants possessed the power of sale for reinvestment of the property devised, without the aid of a court of equity; that the two trusts created by the will were valid; that the life tenants were entitled to possession of the devised property; that Eugene M. Owens was required to give bond for the forthcoming of the personal property at the termination of his life estate; and that George W. Owens and Atta Owens Tinsley were relieved of the obligation to give bond by the consent of the owners of the remainder estates, all of whom were sui juris.

1. It is conceded that the will confers upon the life tenants no express power of sale; but it is argued that such power is implied from the provisions in each instance respecting reinvestments. The chancellor cited Goldberg v. Home Missions, 197 Ky. 724, 248 S.W. 219, as authority for his opinion and counsel for appellant have invoked some additional cases. Spicer v. Spicer, 177 Ky. 400, 197 S.W. 959; Kratz v. Slaughter, 185 Ky. 256, 214 S.W. 878; Vickers v. Vickers, 189 Ky. 323, 225 S.W. 44.

It is not denied that a power of sale may be implied when the provisions of the will render it reasonable to do so. For instance, when the will directs a division of the proceeds of property devised, it will be presumed that the executor of the will was authorized to execute it by making the sale and division. 11 R. C. L., p. 398, par. 480; cf. Dunevant v. Radford, 140 Ky. 433, 131 S.W. 185, 140 Am. St. Rep. 392.

In Goldberg v. Home Missions, 197 Ky. 724, 248 S.W. 219, 220, it was said: "The rule is that a power of sale need not be conferred on a trustee in direct or express terms, but may be implied from the purposes of the trust or from words showing an intention to create the power."

Kratz v. Slaughter's Ex'rs, 185 Ky. 256, 214 S.W. 878, was cited to support the statement. But neither of the cases cited constitute any authority for the implication of a power of sale in favor of a life tenant, who is not otherwise obligated to perform some duty, or to execute some trust respecting the estate in remainder. The general rule is that a life tenant has no implied power of sale, since it is not necessary to the enjoyment of the life estate, or to effectuate any intention of the testator. 21 C.J. p. 960, § 96.

In Vickers v. Vickers, 189 Ky. 323, 225 S.W. 44, it was held that the power given a trustee to sell the trust property may be implied from the conditions of the trust, or from the virtual necessity of a sale to effectuate the purpose of the testator. The case has no relation to the implied powers of a life tenant as such. It is true that a power of sale may be given to a mere life tenant, who may be authorized to convey a fee [ Campbell v. Fowler, 226 Ky. 548, 11 S.W.2d 423; Dorsey v. Bryan, 170 Ky. 275, 185 S.W. 845; Roby v. Herr, 194 Ky. 622, 240 S.W. 49; Bourbon A. B. & T. Co. v. Miller, 205 Ky. 297, 265 S.W. 790], but the will in this instance conferred no such power on the life tenants, either expressly or by necessary implication.

The references in the will to reinvestments of the property, if sold, were addressed to a potential condition, and not to a necessary consequence of something directed by the will to be done. There is vested in courts of equity a statutory power of sale for reinvestment. Civ. Code Prac. §§ 491, 491a. The testatrix may have contemplated a reinvestment under the law, or other unforeseen conditions, and employed the words quoted to indicate her continuing purpose to control the disposition of her property, whether the identical things were preserved, or converted into some other form of investment. In respect to the personal property, it was not unreasonable to expect a change in form in the usual course of events. Mortgages and bonds might mature and be paid, stocks might be liquidated, and the other personal property was subject to similar mutations. In the cases where the power of sale was implied, it was not deduced in favor of life tenants, but in behalf of executors or trustees. The very basis of the implication is that it is essential to enable the trustee to execute the trust, or to perform some duty respecting the trust estate. Cf. Vansant v. Spillman, Trustee, 193 Ky. 788, 237 S.W. 379.

We are unable to sustain the argument that the will in question conferred upon the life tenants by implication, or otherwise, any power to sell the estates in remainder, without resort to a court of equity.

2. It is insisted that the life tenants were entitled to possession of the personal property without being required to furnish a refunding bond. On the other hand, it is contended that the life tenants were not entitled to possession of the personalty, but, if so, it was proper to exact the bond. The will employed this language with reference to the various devises and bequests: "I will and bequeath this house etc.,--during the term of his natural life." And, further, "any stocks, bonds, mortgages, or other investments I may own at the time of...