Ruh's Ex'rs v. Ruh

• Decision Date: 03 December 1937
• Citation: 110 S.W.2d 1097,270 Ky. 792
• Parties: RUH'S EX'RS et al. v. RUH et al.
• Court: Kentucky Court of Appeals

110 S.W.2d 1097

270 Ky. 792

RUH'S EX'RS et al. v. RUH et al.

Court of Appeals of Kentucky

December 3, 1937

Appeal from Circuit Court, Fayette County.

Action under the Declaratory Judgment Act by Alfred Ruh's Executors and others against Rosa Ruh, the Security Trust Company, as trustee for Alfred Joseph Ruh, and others. From the decree, the executors appeal, and the Security Trust Company cross-appeals.

Affirmed.

John B Shannon and Hunt & Bush, all of Lexington, for appellants.

Wilson & Harbison, of Lexington, for appellees.

PERRY Justice.

This appeal involves the propriety of the construction, decreed by the learned chancellor of the Fayette circuit court, of the will of Alfred Ruh in an action brought by his executors under the Declaratory Judgment Act (Civ.Code Prac. § 639a--1 et seq.), asking a construction of his will and advice as to the distribution of his estate.

In June, 1933, Alfred Ruh, of Fayette county, died leaving his wife, Rosa Ruh, a daughter, Florence Ruh Wagner, and three sons, Elmer J. Ruh, Walter A. Ruh, and Alfred Ruh, Jr. surviving him. He also had surviving him a grandson (the child of his son, Elmer J. Ruh) named Alfred Joseph Ruh, an infant under 14 years of age who appears to have been the special object of his grandfather's affectionate concern and to whom he bequeathed a large part of his estate.

Shortly after his death, the decedent's will was duly probated in the Fayette county court.

The will named the sons, Walter A. Ruh and Alfred Ruh, Jr., as executors, who thereupon qualified and entered upon the administration of the estate.

The provisions of the will, the lower court's construction of which we are asked to review as being erroneous, to the extent here urged, are as follows:

"I, Alfred Ruh, *** do hereby make this my last will and testament.

"I. I direct the prompt payment of all my just debts and funeral expenses.

"II. If my grandson, Alfred Joseph Ruh, the son of Elmer J. Ruh and Ruth Ruh, be living at the time of my death, then I hereby give and bequeath to the Security Trust Company of Lexington, Kentucky, upon the following trusts and not otherwise, all the stocks, bonds, notes and other securities that may, at the time of my death, be in my safety box at the Security Trust Company, in Lexington, Kentucky; said Security Trust Company as Trustee for my said grandson, Alfred Joseph Ruh, will take, hold and manage said stock, bonds, notes and other securities and if it deems it proper, sell and re-sell the same from time to time and re-invest the proceeds thereof in other stocks, bonds, notes or other interest bearing securities, as it may see fit, and collect the income therefrom until said Alfred Joseph Ruh shall reach the age of twenty-five years. After deducting the expense thereof said Security Trust Company as such Trustee will pay over the net income therefrom semi-annually to the Guardian of said Alfred Joseph Ruh for his maintenance and education until he shall reach the age of twenty-one years, and thereafter said Security Trust Company, as such Trustee, shall pay over the income therefrom to said Alfred Joseph Ruh in person, until he shall reach the age of twenty-five years, at which time said Trust shall terminate, and said Security Trust Company as such Trustee will at that time turn over to said Alfred J. Ruh all the stocks, bonds, notes and other securities which shall be held by it for him. If, however, said Alfred Joseph Ruh shall die before he reach the age of twenty-five years, I direct that said Trust shall terminate at his death, and if he leaves issue living at the time of his death, then such issue shall take said notes, stocks, bonds, and other securities, and I hereby give and bequeath the same to such issue absolutely and in fee simple. But if said Alfred Joseph Ruh be dead at the time of my death, or if he shall die before he reaches the age of twenty-five years and leaves no issue surviving him, then I direct that said Trust fund shall be equally divided among my four children, Walter A. Ruh, Florence R. Wagner, Elmer J. Ruh and Alfred Ruh, Jr., and I hereby give and bequeath one-fourth thereof to each of said children if living, and if either of said four children be dead at the time and leave issue living, then such issue shall take the parent's share. If either of them be dead and leave no issue living at the time, then such deceased child's share shall pass to the surviving brothers and sisters.

"I have heretofore deposited with the Security Trust Company of Lexington, Kentucky, for said Alfred Joseph Ruh, a first mortgage 5% Gold Bond No. 758 of the Lexington Railway Company, for the sum of $1,000.00, under certain terms and conditions, and it is my intention to allow the same to stand just as provided in my agreement with said Security Trust Company dated April 22, 1924, and said Security Trust Company is to manage said $1,000.00 fund as provided in said contract, separate and distinct from the trust fund provided in said will, and will carry out in full the provisions of said contract.

"III. All the personal property that I may own or have the right to dispose of at the time of my death, except that hereinbefore referred to, I hereby give, and bequeath absolutely to my wife Rosa Ruh to do with as she sees fit.

"IV. All the real estate that I may own or have the right to dispose of at the time of my death, I hereby give and devise to my wife Rosa Ruh, for and during her natural life. At her death, I hereby direct my executors hereinafter named, to sell all of said real estate and divide the net proceeds into five parts, and I hereby give, devise and bequeath one-fifth to my son, Walter A. Ruh, one-fifth to my daughter, Florence R. Wagner, one-fifth to my son, Elmer J. Ruh, and one-fifth to my son, Alfred Ruh, Jr. and one-fifth to my grandson, Alfred Joseph Ruh, the son of said Elmer J. Ruh, and if either of them be dead at the time of my wife's death and leave issue surviving him or her, then such issue shall take the parent's share, but if either of them be dead, leaving no issue surviving him or her then I give, devise and bequeath such deceased child's share to whomsoever may be his or her heirs at law according to the statutes of distribution in force in Kentucky at the time of his or her death.

"V. I hereby nominate and appoint my sons, Walter A. Ruh and Alfred Ruh, Jr. Executors of this my last Will and Testament, and I hereby give to said Executors full power and authority to sell any or all of said real estate that they and my wife shall deem best, if sold during the lifetime of my said wife, and reinvest the proceeds thereof in other real estate, the title to be held in the same way as the property sold. If any sale be made during the lifetime of my wife, it shall only be done with her consent, evidenced by her joining in the deed. If either of said sons shall fail to qualify as Executor, or if either of them shall die, then the other shall have all the powers herein granted to both of them." (Italics ours).

In December, 1933, following the probate of the will, the deceased's widow, Rosa Ruh, filed her renunciation of the will, whereby she relinquished what was given her by it, electing to take, in lieu thereof, her dower and distributable share of her deceased husband's estate under the statute of descent, as if no will had been made.

In November, 1934, the executors of the estate, after selling the live stock and other tangible personalty and paying the testator's debts and funeral expenditures, brought this suit under the Declaratory Judgment Act against the widow and all other beneficiaries under the will, asking for a construction of the will, and advice as to the distribution of the estate, for the reason that they had been unable to agree with the beneficiaries as to its proper distribution, due to (1) the widow's renunciation of the will; and (2) their uncertainty as to (a) whether certain life insurance policies found in the testator's box at the bank should be included in the gift of its contents to the grandson, made by the will, of "other securities," and (b) the effect of the widow's renunciation on the testamentary power given the executors to sell the real estate.

Upon the cause coming on to be heard before the Hon. King Swope, the regular judge of the court, upon the pleadings and exhibits therewith, the court handed down a very comprehensive and carefully prepared written opinion, and directed that, in accordance therewith, a judgment be entered, incorporating the opinion as a part thereof.

After a careful study and consideration of the whole record and of the contentions of both the appellants and cross-appellants, seeking modification or reversal of certain of the rulings pronounced by the judgment, we find and have concluded that the learned chancellor's strong and ably written opinion, showing his thorough analysis made of the case and the questions here again presented, fortified by liberal citation of authority supporting his conclusions, voiced in his judgment, furnishes a correct decision, exposition, and application of the law supporting his opinion and judgment pronounced on the questions here presented, and does itself fully dispose of and answer the criticisms made of his decree.

Being of such opinion, we are led to adopt the learned chancellor's opinion, in so far as we may, though to some extent abridged by reason of its extended length, as our own, thus affirming the judgment both upon the appeal and cross-appeal.

This opinion of the chancellor, pursuant to which his decree was made, and some of the provisions of which are here challenged, sets out first the provisions of the five paragraphs of the will, and then proceeds to set out the stocks, bonds, notes, and...