Susanne De Charette v. St. Matthews B. & T. Co.

• Decision Date: 11 May 1926
• Citation: 214 Ky. 400
• Parties: Susanne de Charette, By, etc., et al. v. St. Matthews Bank and Trust Company, et al.
• Court: United States State Supreme Court — District of Kentucky

Page 400

214 Ky. 400

Susanne de Charette, By, etc., et al. v. St. Matthews Bank and Trust Company, et al.

Court of Appeals of Kentucky.

Decided May 11, 1926.

1. Venue — Circuit Court of County in which Land Involved is Not Located, and in which None of Parties Reside, has Jurisdiction to Construe Will, where Parties Voluntarily Submit to Jurisdiction without Objection to Venue (Ky. Stats., Section 966; Civil Code of Practice, Sections 62-77). — Henry circuit court held not deprived of jurisdiction to construe will, in view of Ky. Stats., section 966, because land was located in another county, and none of parties to action resided in Henry county, where parties voluntarily submitted case to Henry circuit court for adjudication without objection as to venue; Civil Code of Practice, sections 62-77, being unavailable.

2. Judgment — Judgment Construing Will Held Void as to Infant on Whom no Process was Served and no Warning Order Entered, Appointment of Guardian Ad Litem Being Void (Civil Code of Practice, Section 38). — Judgment construing will held void as to infant on whom no process was served and no warning order entered, in view of Civil Code of Practice, section 38, notwithstanding appointment of guardian ad litem to represent her at trial.

3. Judgment — Estoppel of a Judgment Must be Mutual. — Estoppel of a judgment is mutual, and, if judgment does not estop one of parties, it cannot be relied on by him as an estoppel of the other.

4. Judgment — Creditors of Petitioner, Not Parties to Proceedings to Construe Will, Cannot Maintain that Judgment in Proceedings was Conclusive on Parties Thereto, Since Element of Mutual Estoppel was Lacking (Declaratory Judgment Act, Section 9 [Acts 1922, c. 83]). — Judgment in proceedings to construe will under Declaratory Judgment Act not being conclusive on creditors of petitioner who were not parties to proceedings, held, that they cannot maintain that judgment was conclusive on parties to proceeding, since element of mutual estoppel was lacking; Declaratory Judgment Act, section 9, being unavailable.

5. Action — Declaratory Judgment Act Purposes to Relieve Litigants of Common-Law Rule that no Declaration of Rights May be Adjudged, Unless Right has been Violated, for Violation of which Relief May be Granted (Acts 1922, c. 83). — Primary purpose of Declaratory Judgment Act is to relieve litigants of common-law rule that no declaration of rights may be judicially adjudged, unless a right has been violated, for violation of which relief may be granted.

6. Wills. — Intention of testator should guide court in construction of a will.

7. Wills — All Rules of Construction Must Give Way when Actual Intention of Testator is Clear from Will. — When actual intention of testator is clear from will, all rules of construction must give way to it, however crudely or inartificially will may be expressed.

8. Wills — Will Devising Farm in Trust, and Directing Payment of Rents and Profits Therefrom to Testatrix's Daughter, and Providing for Disposition on Her Death, Held to Create Only a Life Estate in Devisee. — Will devising farm in trust, and directing that rents and profits therefrom should be paid to testatrix's daughter, or giving her right to control and operate farm, if living thereon, and providing for its disposition on her death, held to create in devisee only a life estate, notwithstanding that she was granted power to dispose of farm by will.

9. Wills — Power to Dispose of Property by Devisee Conferred on Life Tenant Does Not Create Fee or Enlarge Estate of Life Tenant. — Power to dispose of property by devise conferred on a life tenant does not create a fee or enlarge estate of life tenant, since, if life tenant makes a will, it is only made in execution of the power.

10. Wills. — Life estate of devisee under will may be subjected to payment of her debts, in view of Ky. Stats., section 2355.

11. Judgment — Refusal to Set Aside Consent Judgment for Sale of Personal Property on Foreclosure of Chattel Mortgages Held Not Erroneous, where it did Not Appear that Mortgagor's Attorneys Did Not Consent Thereto. — Refusal to set aside consent judgment for sale of personal property on foreclosure of chattel mortgages held not erroneous, though mortgagor filed an affidavit that she did not consent to judgment, where no affidavit was filed by her attorneys showing that they did not consent to it.

12. Attorney and Client. — In progress of an action, attorneys may consent to orders which they deem proper under the pleadings.

13. Appearance — Defendant's Appeal from Judgment on Codefendant's Cross-Petition Against Her Constituted Appearance as to Such Pleading. — Defendant's appeal from judgment on codefendant's cross-petition against her entered her appearance to such pleading, and, on remand, she would be deemed before court as to it.

Appeal from Shelby Circuit Court.

MATT J. HOLT, W.W. JESSE, guardian ad litem, and WARREN T. GODFROY for appellants.

W. PRATT DALE and BARRET & NETTELROTH for appellees.

OPINION OF THE COURT BY COMMISSIONER HOBSON.

Reversing.

On August 11, 1923, Sue T. Henning executed to the Bank of Shelbyville, and a large number of other creditors named therein, a mortgage on all her property, real and personal, in consideration of their extending the time of payment of their respective debts and agreeing to prosecute no action against her before January 1, 1925. One tract of the land known as Allendale covered by this mortgage was held by Mrs. Henning under the will of Bettie Merriwether. On April 23, 1924, Sue T. Henning filed her petition in equity in the Henry circuit court praying a construction of Mrs. Merriwether's will under the Declaratory Judgment Act. She made defendants to the petition her daughter, Marquise de Charette, her granddaughter, Susanne de Charette, the only child of her daughter, and E.B. Beard and G.T. Dick, who were her trustees under Mrs. Merriwether's will. Marquise de Charette filed a demurrer to the petition; the trustees filed answer, and the circuit court overruled the demurrer. It was also alleged in the petition that Theodore Allen, etc., contingent remaindermen under Mrs. Merriwether's will, had conveyed their interest in the property to Mrs. Henning. A copy of the deed was filed with the petition. A guardian ad litem was appointed for the infant, who lived in France, but no warning order or other process was issued. The guardian ad litem filed answer, and the case being submitted the court on April 25, 1924, entered judgment that Sue T. Henning took a fee in Allendale and discharged the trustees. An appeal was prayed but none appears to have been prosecuted. On July 1, 1924, Mrs. Henning executed a deed of trust to the St. Matthews Bank and Trust Company for the purpose of securing payment of $60,000.00 in bonds, the trustees agreeing to apply the money collected on the bonds to the pro rata satisfaction of the debts of Mrs. Henning. On January 5, 1925, the Bank of Shelbyville and the Logan Grocery Company, two of the creditors named in the mortgage executed August 11, 1923, filed their petition asking that the mortgage be foreclosed and that the property be subjected to the payment of the debts therein named. On February 11, 1925, the St. Matthews Bank and Trust Company filed its answer, counterclaim and cross-petition, setting up a debt it held against Mrs. Henning, and also the provisions of the deed of trust and praying judgment for the settlement of its acts as trustee and the enforcement of the lien. On the same day G.T. Dick and E.B. Beard, as trustees, filed their answer setting up the provisions of Mrs. Meriwether's will and praying that their rights as trustees under the will be protected. On April 2, 1925, the plaintiffs filed an amended petition setting up the proceedings and judgment in the Henry circuit court adjudging that Mrs. Henning had a fee simple title to the property under the will of Mrs. Meriwether and filing a copy of that record as part of the pleading. They also set up the deed of trust executed by Mrs. Henning on July 1, 1924, and prayed that it be enforced. All the necessary parties were made defendants and the nonresidents were brought before the court by a warning order. On May 21, 1925, the St. Matthews Bank and Trust Company filed in open court an amended and supplemental answer, counterclaim and cross-petition, setting up a chattel mortgage on certain Jersey cows and other personal property, executed by Mrs. Henning to it on June 28, 1923, to secure the debts therein named, also the mortgage executed on August 11, 1923, and praying that the chattel mortgage be enforced. On the 23rd day of May, 1925, by consent and agreement of the defendant, Sue T. Henning, it was adjudged by the court that the chattel mortgage be foreclosed and the personal property sold. On August 4, 1925, in vacation, the St. Matthews Bank and Trust Company, as trustee, filed its answer, counterclaim and cross-petition, setting up the deed of trust executed to it on the 1st day of July, 1924, and praying that its lien be enforced and the land sold for the satisfaction of the $60,000.00 of bonds named in it. On August 4, 1925, a warning order was made against Marquis de Charette, Marquise de Charette and Susanne de Charette. No other process appears in the record upon this pleading or notice of its filing. On October 7, 1925, Mrs. Henning, by attorney, offered to file her answer, counterclaim and cross-petition. The court allowed the third and fourth paragraphs of the answer to be filed, but refused to allow the first and second paragraphs to be filed. It overruled the demurrer she had filed to the petition and amended petition. It entered judgment against Mrs. Henning in favor of the St. Matthews Bank and Trust Company, trustee, for $60,000.00 on the bonds and adjudged a lien on the property therefor. It further adjudged that she owned all the land in fee simple. It overruled the plaintiff's motion for an...