Talbott's ex'R v. Goetz

• Decision Date: 13 May 1941
• Citation: 286 Ky. 504
• Court: United States State Supreme Court — District of Kentucky
• Parties: Talbott's Ex'r et al. v. Goetz.

286 Ky. 504

Talbott's Ex'r et al. v. Goetz.

Court of Appeals of Kentucky.

May 13, 1941.

1. Wills. — Under will providing that testator's widow should take "what the Statutes of Kentucky give to her and no more," widow's share of testator's estate would be determined by the laws of descent and distribution of the commonwealth in the same manner as if testator had died intestate.

2. Wills. — A testamentary gift to a surviving spouse of his "lawful portion," or of "whatever the law allows him," or any similar form of gift, passes such interest as the surviving spouse would have taken if there had been no will.

3. Descent and Distribution. — A gift of money from husband to wife during the year before husband's death was not an "advancement" which could not be considered a part of husband's estate for purpose of determining wife's share therein, notwithstanding that receipt executed by wife and husband's will both referred to gift as an advancement (Ky. Stats., secs. 1407, 1408).

4. Descent and Distribution; Statutes. — The statute defining "advancement" as gift made by parent to child or grandparent to grandchild, and the statute providing that advancements shall not be taken as part of decedent's personal estate in estimating distributable share of widow, must be read together, and the application of the second statute must be confined to advancements as defined in the first statute (Ky. Stats., secs. 1407, 1408)

5. Descent and Distribution. — A gift which a decedent has made to his wife during his lifetime is not an "advancement," but an advancement is an irrevocable gift, not required by law, made by a parent during his lifetime to his child with intention on part of donor that such gift shall represent part or whole of that portion of donor's estate that donee would be entitled to on donor's death intestate (Ky. Stats., sec. 1407).

6. Descent and Distribution. — Under statutes defining advancement and providing that advancements shall not be taken as part of decedent's personal estate in estimating distributable share of widow, a donor, no matter what his intention, cannot make a gift an advancement which is not made so by law (Ky. Stats., secs. 1407, 1408).

7. Executors and Administrators. — The statute providing for exemption of $750 to be set apart to widow by appraisers of decedent's estate from personal property or money on hand or in the bank of decedent, and statute providing that wife shall have absolute estate in one-half of surplus personalty left by deceased husband, are not inconsistent (Ky. Stats., secs. 1403, 2132).

8. Descent and Distribution. — "Surplus personalty," within statute providing that wife shall have absolute estate in one-half of surplus personalty left by deceased husband, is personalty remaining after debts, funeral expenses, and widow's exemption have been deducted from gross personalty possessed by decedent at the time of his death (Ky. Stats., secs. 1403, 2132).

Appeal from Bourbon Circuit Court.

Gene Lair and Virgil Gaitskill, Jr., for appellants.

Bradley & Blanton for appellee.

Before W.B. Ardery, Judge.

OPINION OF THE COURT BY VAN SANT, COMMISSIONER.

Affirming.

Robert C. Talbott, a resident of Bourbon county, Kentucky, died testate in the year 1930. At the time of his death his family consisted of 5 children by a former marriage, and his wife Clementina whom he married in later life. The widow remarried and is known in this action as Clementina Talbott Goetz. Mr. and Mrs. Talbott had been living separate and apart for several years preceding his death.

On March 25, 1929, the deceased paid to his wife the sum of $5,000, upon delivery of which she executed a receipt which was in words and figures, as follows:

"Received of Robt. C. Talbott this March 25, 1929, New York Draft for the sum of $5000.00 to be used in making payments on real estate in Nashville Tennessee conveyed to the undersigned, the said $5000.00 to be credited on any written agreement as to property matters which the said Robt. C. Talbott and the undersigned may enter into hereafter, and if no such agreement is entered into then to be credited on any claim of the undersigned for alimony, if any, or other claim, if any, against him or his estate, and if none be treated as an advancement and credit on any claim in the way of dower or distributable right, if any, in his estate, the said $5000 having been paid to the undersigned on the above terms and conditions for the above purpose."

The second paragraph of the testator's will is in the following words and figures, towit:

"I have paid to and for my present wife since she has been living away from me large sums of money to live on and to buy property, most of which will be shown by my bank books and cancelled checks. If I leave her surviving me and undivorced, she shall have and take what the Statutes of Kentucky give to her and no more, but she shall be charged with an advancement of Five Thousand Dollars ($5,000.00) paid to her to buy real estate in Nashville, Tennessee, under agreement signed by her that this $5,000.00 shall be treated as an advancement out of her distributable share as surviving wife, and any other sums hereafter paid under similar agreement signed by her shall be likewise deducted from such distributable share as surviving wife. Beside the $5000.00 so evidenced by her said receipt, many other sums large, and small, to buy different kinds of property, including real estate, have been by me advanced to her, but I am only charging her with the $5000.00 so agreed in writing, to be treated as an advancement, and any sums hereafter paid and evidenced by similar receipts signed by her."

The balance of the estate was otherwise disposed of and his sons-in-law, Honorable Virgil Chapman, and Wade H. Whitley were named executors of the will. Before final settlement of the estate Mr. Whitley died and Edna T. Whitley was appointed administratrix of his (Whitley's) estate. Among the claims proven against the estate of Mr. Talbott and paid by the executors was a note held by the Bourbon-Agricultural Bank & Trust Company, signed "Clementina Talbott by Robert C. Talbott" and "Robert C. Talbott" which note was in the principal amount of $5,000 upon which interest had accumulated to the amount of $122.57. In making settlement of the estate the executors treated the $5,000 note together with the accumulated interest as not having been paid (though actually it had been paid) and reported a net balance remaining in the estate of $17,379.72. For the purpose of determining the amount to be distributed under the will the executors added to the $17,379.72 the sum of $5,000, representing the amount received by Mrs. Goetz on March 25, 1929, which made a total estate in their calculation of $22,379.72, one-half of which, namely $11,189.86, they interpreted as belonging to the widow, Mrs. Goetz, but against which they charged the sum of $5,000 aforesaid plus the amount of the above-mentioned note and interest making a total deduction of $10,122.57. They thereupon paid her the difference, viz., $1,057.29, for which they took her receipt. The widow elected to take under the will and filed this action against Mr. Chapman and Mrs. Whitley, the Maryland Casualty Company, and the United Fidelity and Guaranty Company, sureties on the bonds of the executors, alleging that the settlement of the executors was erroneous in that it illegally charged her with the amount of the aforesaid note and interest; that same should be surcharged; that the executors and bondsmen should be required to account to her for the sum of $750 as her exemption under Section 1403, Kentucky Statutes, and that under a proper accounting of said estate she was entitled to the total sum of $5,497.57.

Ethel Talbott Gaitskill...