Ramsey's Executor v. Ramsey

• Decision Date: 25 March 1932
• Parties: Ramsey's Executor et al. v. Ramsey.
• Court: United States State Supreme Court — District of Kentucky

243 Ky. 202

Ramsey's Executor et al. v. Ramsey.

Court of Appeals of Kentucky. Chancery Branch, First Division.

Decided March 25, 1932.

1. Wills. — Insane widow's petition asking court to make election for her under husband's will, filed within year of probate of will, held not too late though answers were filed after year had expired (Ky. Stats., sec. 1404).

Such petition asking court to elect for insane widow between provisions for her behalf under husband's will or her rights as surviving widow, filed within one year after probate of decedent's will, was not too late though a year had passed before answers were filed, because court's action on petition related back to date motion was made, and because chancellor's

right to make election could be exercised after he had acquired necessary facts to enable him to do so, in that he could postpone time for such election so as to make intelligent election possible.

2. Wills. — Court electing for beneficiaries under will by reason of their incapacity looks only to benefits of those incapacitated, and not other parties in interest (Ky. Stats., sec. 1404).

3. Wills. — Evidence disclosed that it was to insane widow's financial interest to renounce under husband's will and take by descent (Ky. Stats., sec. 1404).

Evidence disclosed that husband's will devised insane widow only the income from $4,000, and that his personal property alone at the time of his death was worth $20,000, of which half would descend to widow under statutes of distribution.

4. Wills. — Equity held authorized upon application of insane widow's committee to renounce her rights under husband's will and elect to take by descent (Ky. Stats., sec. 1404).

5. Wills. — Insane persons and others legally incapacitated are wards of chancery court when their property is before court for distribution, and court may, if to ward's interest, renounce provisions of will made in his behalf.

Appeal from Jefferson Circuit Court

BLAKEY, DAVIS & LEWIS and GAVIN H. COCHRAN for appellants.

WOODWARD, HAMILTON & HOBSON and W.J. COX for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Affirming.

On January 9, 1929, Nora Brown Ramsey, by her committee, Earnest Brown, filed this equity action in the Jefferson circuit court against Fidelity & Columbia Trust Company, executor of George W. Ramsey, deceased, and also against the widow, and the only surviving child of Roy D. Ramsey, deceased, who was a son of George W. Ramsey but who died before the death of his father. The petition alleged that George W. Ramsey and plaintiff, Nora Brown Ramsey, were married in Hopkins county, Ky., in 1887; that about six months after their marriage the wife became insane and was so adjudged upon inquest duly held, and was immediately confined in the Western Kentucky Insane Asylum at Hopkinsville, Ky., where she has continuously been since that time; that George W. Ramsey died in 1928 a resident of the city of Louisville, to which place he removed after the insanity of plaintiff, and that prior thereto he executed his will in which he devised to plaintiff only the income from $4,000, and that the remainder of his property was devised to the widow of his deceased son and to her only child; that the Fidelity & Columbia Trust Company was made the executor of the will and trustee of the $4,000 trust fund for the benefit of the insane widow, and that the will had been duly probated.

Plaintiff asked for a settlement of the estate of George W. Ramsey, the extent of which, as averred in her petition, was unknown to her, and that she was incapable of ascertaining it, as she was also incapable of electing between the provisions made for her in the will, and her rights under the law as surviving widow in case of renunciation by her under the provisions of section 1404 of our present Statutes, and for which reason she prayed that the court make an election for her, since she was mentally incapable of doing so, and that it finally enter proper judgments and make appropriate orders for her protection and benefit, in compliance with the election that it might make in her behalf.

The answer chiefly relied on an alleged divorce from plaintiff, obtained by George W. Ramsey in the Hopkins circuit court in 1897, and which was procured by him on the ground of five years' separation without cohabitation. The second paragraph of the reply attacked the relied on divorce judgment upon the ground that defendant therein, and plaintiff here (Nora Brown Ramsey), was not legally before the court at the time the divorce decree was rendered. A paragraph of the rejoinder, in response to the attack made on the divorce decree in the reply, denied its averments and copied therein the summons that was issued in the divorce proceeding, together with the officer's return thereon, and averred that a guardian ad litem was duly appointed therein to represent the insane defendant, which he did, and that the court had jurisdiction of the person of defendant therein and that the judgment had never been modified, reversed, or in any manner set aside and was still in full force and effect.

A demurrer was filed to that paragraph of the rejoinder which the court carried back to the paragraph of the reply attacking the judgment and sustained it thereto, upon the ground that the attack was a collateral one, and, since it was not manifested that the record of the divorce judgment affirmatively showed the want of jurisdiction of the plaintiff herein, and defendant in that action, the attack as such collateral one could not be sustained. The case then remained upon the docket, for some considerable time during which plaintiff and her committee, after notice given, appeared in the Hopkins circuit court and entered a motion therein to reinstate on the docket of that court the divorce case of Ramsey v. Ramsey, and to then set it aside, on the ground that it was void because defendant therein was not legally before the court. The Hopkins circuit court sustained that motion and set aside the divorce judgment, which was affirmed by this court in the case of Ramsey's Ex'r v. Ramsey, 233 Ky. 507, 26 S.W. (2d) 37.

The opinion in that case exhaustively considered and determined the rules of practice governing collateral as well as direct attacks of judgments and sustained the learned judge who considered this case in the Jefferson circuit court in holding that the attack made in the original reply herein upon the divorce judgment was a collateral one and could not be sustained under the allegations of the paragraph of the reply to which a demurrer was sustained. That opinion also held that the motion in the Hopkins circuit court to set aside the divorce judgment was a direct attack, and upheld the judgment of that court in sustaining that motion, upon the ground that the summons in the divorce judgment was not executed in the proper manner to bring the defendant therein and plaintiff here before that court so as to authorize the divorce decree upon which defendants herein first relied. After the rendition of our opinion in the 233 Kentucky case, an amended reply was filed in this one in the court below in which it was averred that the judgment of the Hopkins circuit court granting the...