Slack's Ex'r v. Barrett

• Decision Date: 27 March 1942
• Citation: 290 Ky. 251,160 S.W.2d 595
• Parties: SLACK'S EX'R et al. v. BARRETT et al.
• Court: Kentucky Court of Appeals

160 S.W.2d 595

290 Ky. 251

SLACK'S EX'R et al. v. BARRETT et al.

Court of Appeals of Kentucky

March 27, 1942

Appeal from Circuit Court, Mason County; C. D. Newell, Judge.

Suit by O. Slack Barrett and others against Sallie D. Slack's executor, wherein the plaintiffs asserted ownership to certain shares of stock and certain personalty owned by E. C Slack at the time of his death, and wherein Elmer Downing and the Hayswood Hospital intervened. From an adverse judgment Sallie D. Slack's executor and the Hayswood Hospital appeal.

Judgment affirmed.

Browning Zeigler & Cochran, of Maysville, for appellants.

J. M Collins, Jr., of Maysville, B. S. Grannis, of Flemingsburg, and Harry B. Mackoy, of Cincinnati, Ohio, for appellees.

MORRIS Commissioner.

The question presented on appeal involves the title to 50 shares of stock of the Bank of Maysville, of the agreed value of $5,000, and incidentally the construction of the holographic will of E. C. Slack, who died March 3, 1918, which in so far as pertinent reads: "(b) I desire that my wife Sallie Downing Slack have the remainder of my property as long as she may live. At her death I desire what is left of my personal property, and all the real estate she gets from me to be divided equally between my sister's, Mrs. O. F. Barrett's, two children, Slack and Dorothy Barrett. I wish for my wife to be appointed administrator without surety."

Mrs. Slack qualified, and acted as executrix until her death, August 11, 1937. She also left a holographic will, dated November 26, 1936, in which she provided for payment of debts, and made some twentyfive or more specific bequests, then wrote: "(a) I give to Elmer Downing my Bank of Maysville stock, 70 shares ***. (z) What is left after these bequests I give to Hayswood Hospital."

She named the Bank of Maysville executor, and it qualified and is still acting. As the pleadings develop, the parties in interest were the niece and nephew of Mr. Slack, and Elmer Downing, cousin of Mrs. Slack, and the Hayswood Hospital, residuary legatee under Mrs. Slack's will.

The controversy arose by the filing of a petition by the niece and nephew in which they asserted ownership under the will to 50 shares of the Bank of Maysville stock, certain articles of furniture, described as heirlooms and antiques, and several shares of stock, admittedly owned by testator at the time of his death. As to the 50 shares of stock it was averred this item was inadvertently omitted from the inventory of Mr. Slack's personal property, and appropriated by her. The other stock, and the articles of furniture were listed, but they say that notwithstanding Mrs. Slack only had a life estate, she disposed of same by inter vivos gifts or sales. Their prayer was for judgment for the 50 shares of stock, or value if it had been disposed of; for value of the stocks mentioned in Mr. Slack's inventory, and the articles of personal property, and if not forthcoming, then their value.

The executor was named defendant, and in its answer admitted its possession of the stock in controversy. It took the position that under Mr. Slack's will the widow took the life estate, with an implied power of use and disposition, general and unlimited, since under all the facts and circumstances, there was and could be no necessity for use or disposition on her part, hence the power was absolute, in so far as personal property was concerned. In this pleading it was developed that the certificate, 70 shares of stock bequeathed to Mr. Downing, included 20 shares admittedly owned by Mrs. Slack, and about which there is no dispute. The executor then suggested that since it was willed to Mr. Downing he was the real party in interest. Mr. Downing intervened and asserted that the 70 shares of stock belonged to Mrs. Slack, and passed under her will.

It also developed that he was heir-at-law of Mrs. Downing, and if the court should be of mind that the 50 shares belonged to Mr. Slack, and passed under his will, then he was entitled to contribution to the extent of the value of the stock. Section 2077, Ky. Stats. This plea involved matters, and Hayswood Hospital intervened. It adopted the idea expressed in the pleading of the executor in so far as it undertook to construe the will to mean that Mrs. Slack took title to the personal property.

The intervenor Hospital also interposed the pleas of limitations and laches. Both were based on the facts that Mrs. Slack had qualified as executrix, and as such had caused an inventory to be made and recorded, which did not include the 50 shares of stock; that one of the appraisers, then president of the bank, was the officer required to sign the stock certificates issued or transferred, had not included the 50 shares of stock in the inventory. That notwithstanding the failure of the inventory to include the stock, neither of the plaintiffs questioned the failure, filed exceptions, or took action until they began prosecution of their suit, nineteen years after the appraisement was filed, and had the remaindermen under the E. C. Slack will acted with diligence and questioned the inventory, and noted the bank records (destroyed in the 1937 Ohio river flood), the question of ownership might have been sooner determined; Mrs. Slack would have known of claim of adverse ownership, and drawn her will in another fashion, or established her title.

Presumptively they say, the executrix and the appraisers faithfully performed their duties as required by law and fully accounted for the entire personal estate of the testator. It was asserted that the unchallenged inventory constitutes a correct accounting of E. C. Slack's personal estate, and that by silence and acquiescence they have prejudiced the rights of the residuary legatee by placing it in a position where it cannot well defend itself against plaintiffs' assault. This pleading developed, as later shown, that all records relating to the 50 shares of stock, except as hereinafter noted, had been destroyed.

Mr. Downing in an amendment alleged that since the controversy arose, the stocks in question had accumulated dividends to the extent of $900, which would pass to whomsoever might be adjudged the owner, and he should have contribution to the extent of the accumulations. Plaintiffs then filed reply and answer to the answer and cross-petition of residuary legatee, taking issue with its (and the executor's) construction of the E. C. Slack will. They admitted the filing of the inventory, which was not filed until January 19, 1919, year of Mr. Slack's death, but assert that no settlement of his estate had ever been made; that they had no knowledge of the inventory having been made until a "very recent time." That it would have been against their interest to have precipitated a controversy, and that as far as the remainder interest was concerned no right of action accrued to them until the death of Mrs. Slack. All pleadings not specifically otherwise controverted, were controverted of record, and thus the issues closed. Proof by depositions was adduced and the chancellor upon submission adjudged substantially as follows:

(a) That under Mr. Slack's will his widow took all of his property, real and personal, with the right to consume personal property, if reasonable necessity so required, and subject to such rights the remaindermen took the title to the personal property not consumed by her. That no necessity arose for consumption or use during her life, so that such of the personal property as came to her hands at the time of E. C. Slack's death, not disposed of during her lifetime, passed under the will to the niece and nephew.

(b) That E. C. Slack was at the time of his death the owner of 50 shares of the First Standard Bank and Trust Company stock, later exchanged for stock in the Bank of Maysville, "this being the stock in controversy," still in existence and subject to identification, which pass to the plaintiffs jointly, and the bank will issue to them certificates, and pay dividends on said stock, accumulated since the death of the widow, to the sum of $900.

(c) This stock was willed to Elmer Downing by Mrs. Slack, and he being her heir-at-law, and the bequest failing, he is adjudged to recover of the executor the proven value thereof, $5,000, and in addition thereto $900 in lieu of dividends accumulated.

(d) The following items mentioned in Mr. Slack's will were converted by Mrs. Slack: the Home Warehouse stock, $550; the Milling Company stock, $80; the Fair stock, $30, and several items of furniture, all including stock above named, of the value of $1,060, which the executor was directed to account for in value.

(e) Since there are sufficient assets to pay all debts, specific bequests and costs, the executor is directed to pay the sums above specified from the residue of the estate. To this judgment the residuary legatee objected, excepted and is, in conjunction with the executor, prosecuting this appeal.

It is agreed that both Mr. and Mrs. Slack were persons of ability, intelligence, high moral character and standing; that Mrs. Slack qualified as executrix as stated, and inventory of personal property filed in January 1919 made no mention of the 50 shares of bank stock; that Mrs. Slack never made settlement, partial or otherwise, of Mr. Slack's personal estate; that no appraisement of her estate was made, or if so it is not part of the record. A partial settlement of her estate was made in 1938, after the filing of the suit by the plaintiffs.

The settlement filed notes that there came to the hands of the executor 70 shares of Maysville Bank stock. This shows distribution in kind of household goods and furniture, but does not show distribution to Mr. Downing of the bank stock. Mrs. Slack's personal estate, as...