Shutt's Adm'r v. Shutt's Adm'r
Decision Date | 21 June 1921 |
Citation | 192 Ky. 98,232 S.W. 405 |
Parties | SHUTT'S ADM'R v. SHUTT'S ADM'R. |
Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Kenton County, Criminal, Common Law, and Equity Division.
Action by certain remaindermen under the will of J. D. Shutt against others having a like interest, to which Sarah A. Shutt's administrator and J. D. Shutt's administrator de bonis non cum testamento annexo of the estate were made defendants. From an adverse judgment, Sarah A. Shutt's administrator appeals. Affirmed.
Chas M. F. Striger, of Covington, for appellant.
D Collins Lee and John L. Lunsford, both of Covington, for appellee.
J. D Shutt, a resident of Kenton county, died in 1895, testate. He left no children, but was survived by his wife, Sarah A. Shutt, to whom by his will he devised his entire estate, real and personal, for life, with remainder at her death to certain named blood relations of the testator; the second clause of the will providing as to the estate devised her that she should "hold the same for and during her natural life, and to use, enjoy and dispose of the income thereof as she may desire." The third clause of the will provides as follows:
"I hereby empower and direct my said wife Sarah A. Shutt, to invest such money as may come to my estate by payment of notes, bonds, etc., or from insurance upon my life in such securities as will inure to the benefit of my estate; and also to sell and dispose of any bonds, stocks, lands, tenements or other property belonging to my estate, and reinvest the proceeds in such other bonds, stocks or property as may seem advantageous; and such investments when made shall be held used, enjoyed and controlled in the same manner as prescribed herein for property owned by me at the time of my death."
The fourth clause of the will provides for the disposition of the estate after the widow's death, and the fifth clause appoints the widow executrix of the will without bond.
After the probate of the will the widow, without formally qualifying as executrix, took possession of the testator's entire estate, and remained in possession and control thereof until her death in February, 1918, intestate. After her death the appellant, R. H. Gray, was appointed and duly qualified as the administrator of her estate and about the same time the appellee, E. S. Lee, was appointed and duly qualified as administrator de bonis non with the will annexed of the estate of J. D. Shutt, deceased. After the widow's death, but before the appointment of either administrator, this action was brought by certain remaindermen under the will of J. D. Shutt against the others having a like interest, to obtain a sale of the real estate devised by his will, to which the administrator de bonis non with the will annexed of his estate and the administrator of the estate of Sarah A. Shutt were, by amended petitions, later made defendants. Thereafter, by additional pleadings filed by the remaindermen and cross-pleadings between the administrators, final distribution among the remaindermen of the J. D. Shutt estate was sought, and to that end an accounting and final settlement demanded of the administrator of Sarah A. Shutt respecting the moneys and securities received by her under J. D. Shutt's will as life tenant. It was admitted, however, that appellee, as administrator de bonis non with the will annexed of the estate of J. D. Shutt, had already received of appellant, as administrator of the estate of Sarah A. Shutt, certain bonds, stocks, other securities, and $983.93, money on deposit, all described in an accompanying paper as what remained at the death of Sarah A. Shutt of the personal property devised her for life by the will of J. D. Shutt; but it was, in substance, alleged that there was left due the estate of J. D. Shutt from that of Sarah A. Shutt a large amount of money and property which could only be ascertained by a settlement of the two estates, in furtherance of which a reference of the cause to the master commissioner was prayed.
The pleadings found in the record were so frequently amended and are so unusually voluminous that we will not undertake to set them forth in detail, so, to avoid confusion, we will only refer to such of them as affect the questions actually presented for decision. It appears from the record that from the time Sarah A. Shutt, as executrix and life tenant, took charge of the estate devised by the will of J. D. Shutt down to the time of her death, she collected and used for her own benefit, as was her right, the rents and income from the devised estate, and within that time made with the county court nine settlements of her accounts as executrix; in the eighth of which she charged the estate with all taxes and repairs and reported no receipts from rents or income, and by that settlement it was made to appear that the estate was indebted to her, for taxes and repairs paid for and on the property devised, about $21,000. In the meantime she had received in 1899 from the First National Bank $5,600 for 56 of 112 shares of its capital stock that came to her as life tenant under her husband's will, with which sum she was not charged in any of the settlements. It also appears from the several settlements that Mrs. Shutt intermingled her own accounts with those of the estate, and, as was later made to appear, had charged the estate of the testator with numerous illegal disbursements.
In 1916 she had a controversy with one of the remaindermen, in which the latter made complaint as to numerous alleged illegal charges made in her settlements against the devised estate. The controversy resulted in her making the ninth and final settlement, which disallowed the disbursements for taxes and repairs, amounting to about $21,000, with which she had been credited by the eighth settlement. By his answer in this action for an accounting the appellant denied all items against the estate of his decedent sued for, and, while admitting that she had received and not been charged with the $5,600 obtained for the bank stock sold, alleged that this amount was not a part of the corpus of the estate, but merely income with which she could not be charged, and, further, that the $5,600 had been used by the decedent in paying debts against the estate and in making investments for the estate; these items being enumerated and aggregating, as claimed, $5,327.36. The answer also pleaded the statute of limitations against the item of $5,600.
The answer likewise pleaded a counterclaim, aggregating $38,466, of the following items alleged to be due the decedent's estate from that of her husband: $22,021.38, for moneys claimed to have been expended by the life tenant in repairs on the devised real property and for taxes on same and the personal property, as shown by her first eight settlements; $5,330, it was claimed should be allowed her estate for services rendered by her as executrix of J. D. Shutt's will; $3,114.67, claimed to have been paid by her in taxes on the entire estate and repairs and insurance on the real property from May 6, 1915, to the date of her death, and alleged not to have been allowed in any of the settlements she had made; $8,000, for money it was alleged she advanced her husband, J. D. Shutt, in 1868 to purchase the homestead to which he admittedly took the title and in which they lived until his death, and which after his death was "used and occupied as her home continuously for 23 years and until her death February 4, 1918, at all times claiming her interest and property therein to the extent of the sum of $8,000." The above items of alleged indebtedness were consecutively set up in separate paragraphs, numbered 1 to 6, inclusive. To each of these paragraphs the appellee filed a general demurrer, each of which the circuit court sustained. Appellant excepted to these rulings and failed to plead further as to the matters set up in paragraphs 2, 4, and 6, but amended paragraphs 3 and 5 by alleging that the expenditures for insurance, taxes, and repairs claimed in paragraphs 3 and 5 were necessary for the protection of the devised estate. The averments of the amended answer were controverted by reply, which, in addition, alleged that the repairs made by the life tenant were not permanent, and that the several expenditures charged therefor and for insurance and taxes, if made by her as claimed, were and are not chargeable to the estate of J. D. Shutt or the remaindermen under his will, but were legally chargeable to and should have been paid by appellant's decedent as life tenant of the estate devised by the will. It was further alleged in the reply that the ninth settlement was made by her under the advice and supervision of her attorney and was expressly approved by her, and that it corrected the previous ones by rejecting and striking out as illegal the several claims against the J. D. Shutt estate therein allowed and again set up in the third and fifth paragraphs of appellant's answer, and that appellant was estopped by the ninth settlement to demand their recovery or credit for them, which estoppel was duly pleaded. Appellant, by rejoinder, alleged that his decedent's approval of the ninth settlement resulted from improper advice from her attorney and her incapacity from age and infirmity to understand the settlement, and these averments were in turn controverted by surrejoinder.
After the taking of proof and upon submission of the case the chancellor held that appellee was entitled to recover of appellant $5,600, one of the items sued for in the petition but allowed as credits thereon the items of $983.93 and $24.40, asserted by the appellant's counterclaim, which credits reduced the recovery of appellee to $4,591.67 and the costs of the action. All other demands claimed in the...
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