Peynado's Devisees v. Peynado's Executor

• Decision Date: 08 March 1884
• Citation: 82 Ky. 5
• Parties: Peynado's Devisees v. Peynado's Executor.
• Court: Kentucky Court of Appeals

82 Ky. 5

Peynado's Devisees v. Peynado's Executor.

Court of Appeals of Kentucky.

March 8, 1884.

APPEAL FROM LOUISVILLE CHANCERY COURT.

BARRETT & BROWN FOR APPELLANTS.

ROSEL WEISINGER FOR APPELLEE.

CHIEF JUSTICE HARGIS DELIVERED THE OPINION OF THE COURT.

By his will, after making various bequests, Edward Peynado, devised the residuary of his estate to his wife Ida B. Peynado during her life, and then made the following provisions:

"15. One year after her death the whole of my residuary estate shall be converted into cash, and together with all accrued interest, shall be invested as follows:

"16. Half of the money left by me after my wife's death to be used in erecting a building in the suburbs of the city of Malaga, (Spain,) to be under the patronage and care of the city authorities and under the superintendence of one or more Sisters of Charity, to be used as an Orphan Asylum and School for as many little poor orphan children (males) from respectable families as can possibly be taken. The Sisters in charge of said establishment should be well educated and well versed in geography, mathematics, grammar, history and penmanship, so as to be able to teach the children to become learned and industrious. I have no doubt the institution will be assisted and encouraged by the good and wealthy citizens of Malaga, and will some day become a great institution. The other half of my capital or residue to be placed out on good security so as to yield a semi-annual income, and shall be applied in paying the expenses incurred in keeping up said boarding establishment. I also leave our pictures, two oil paintings of my wife and myself, to the said institution.

"17. A true copy of this will will be sent to the then acting Spanish Minister of Spain, at Washington, D. C., by my executors, with the request that he should see that an honest man be appointed to superintend and fulfill my wish; a man who without any reward for his services and only for the sake of doing good to my native city, will take willingly the responsibility and trouble necessary for such a task. The person so appointed will have to give security and also hand a semi-annual statement of the condition of the institution to the then acting civil authorities of Malaga. As the children of the institution become of age, I mean able enough to make a living for themselves, the friends of the institution will be kind enough to procure for them situations in commercial houses, stores and factories where they can earn an honest livelihood. This institution shall not, at any time, incur or owe a debt exceeding ($5,000) five thousand dollars.

"18. My executors will demand security from the Spanish Minister, or his representatives, that my will shall be carried out according to my wish, and they shall keep in trust, if they think proper, the whole of my residuary estate for three years after my death or until they are convinced of the fulfillment of my wish by the Spanish Minister and authorities of Malaga.

"19. If within three years after my death this bequest fail of execution from any cause, then the same shall lapse and be void, and the whole of my residuary estate, together with all accrued interest, shall be divided amongst the children of Francisco de P. Parra, Sr., Juan Jose Parra, Augustin Parra, Joaquin Parra, and Diego Parra, of New Orleans, La., and children of Jose Ma Parra and Jose Ma Vega, of Malaga, Spain."

The will was probated and the widow renounced its provisions in her behalf. This action was brought to obtain a judicial construction of the above clauses of the will, the ultimate residuary devisees named in the 19th clause, the City of Malaga, and the acting Spanish Minister being made defendants.

The City of Malaga and the Spanish Minister by their attorney in fact, answered, separately, claiming that the will created a trust with sufficient certainty for the purpose of erecting an Orphan Asylum in the City of Malaga; that the City was designated as the trustee, and is capable, being an incorporated municipality, of accepting the trust, and, the widow having renounced the provisions of the will, entitled to the residuum and ready to proceed, at once, to the performance of the duties prescribed by the will and according to its terms.

The ultimate residuary devisees asserted claim to the residuum of the estate on the grounds —

1. That the trust is too vague to be upheld and there is no discretion vested in any one to cure the uncertainty.

2. That the will requires the Spanish Minister to give security as a condition precedent to the existence or execution of the trust.

3. And if no security were required by the will, the court ought to exact it for their protection and to retain effective control of the property represented by the surety, in the event of non execution of the trust within three years after the testator's death.

Each of these propositions was rejected by the learned chancellor in his construction of the trust clauses of the will, and a judgment rendered by him in contraposition to all of them and the proper interlocutory orders entered to carry out the charitable intention of the testator. To test the legal virtue of that judgment this appeal was taken by the ultimate residuary devisees.

Their position has for its basis two propositions —

1. That there is no room for equity to interfere where there is no ambiguity in the testator's declaration.

2. That there is no ambiguity in this will but simply a non use of such terms as are essential to the creation of a trust.

It is not necessary to the results of this opinion, that the first proposition, were it law in an unlimited extent and suitable to all states of fact, which we are inclined to doubt, should be combated, it is only indispensable that the assumptions of the...