Todd's Ex'r v. First Nat. Bank

• Decision Date: 04 January 1917
• Citation: 173 Ky. 60,190 S.W. 468
• Parties: TODD'S EX'R ET AL. v. FIRST NAT. BANK ET AL.
• Court: Kentucky Court of Appeals

190 S.W. 468

173 Ky. 60

TODD'S EX'R ET AL. v. FIRST NAT. BANK ET AL.

Court of Appeals of Kentucky.

January 4, 1917

Appeal from Circuit Court, Owen County.

Suit by S. J. Todd and another against Fred H. Todd and others, in which the First National Bank and others filed claims. From judgment for claimants, plaintiffs appeal. Reversed and remanded.

Vallandingham & Alexander and W. A. Lee, all of Owenton, for appellants.

Botts &amp Perry, of Owenton, Tomlin & Vest, of Walton, and J. L. W Slaughter, of Owenton, for appellees.

CLAY C.

J. S Todd, a resident of Owen county, died on June 29, 1904, leaving the following will:

"I, J. S. Todd, being of sound mind and ablebodied enough to write, do will and bequeath to my dearly beloved wife, Sophia J. Todd, all of my personal property and household goods to have and to hold. The real estate I will jointly to my wife, S. J. Todd, and my dearly beloved son, O. K. Todd, after my just debts are paid. The farm to be run mutually. My wife, S. J. Todd, is to have a maintenance out of the proceeds of the farm, if it requires one-half of it.

Power is hereby given to my wife, S. J. Todd, and son, O. K. Todd, to sell or convey all or any part of the real estate if they mutually agree so to do, and the proceeds, if reinvested, to be subject to the conditions of the will.

Should O. K. Todd die before my wife, S. J. Todd, the lands revert back to S. J. Todd as guardian for the bodily heirs of O. K. Todd.

At the death of my wife, S. J. Todd, the property is to go to O. K. Todd.

I hope this will and desire of mine will be carried out without them having to give bond.

If S. J. Todd and O. K. Todd should both die before the bodily heirs of O. K. Todd become of age, the court is requested to appoint a guardian and require him to give a gilt-edge bond.

The only regret I have is that I have not ten times as much to leave as I have. It would be a feeble way to show the appreciation of their devoted love they have shown to and given me.

I appoint S. J. Todd and O. K. Todd as the executor of my will."

At the time of his death J. S. Todd left surviving him his widow, S. J. Todd, and one son, O. K. Todd. The latter's family consisted of his wife, Ella Todd, and two children, Fred H. Todd and Mary Todd. The testator, J. S. Todd, owned certain personal property and two farms, one of 61 acres and the other of 281 acres. Prior to his death the testator and his wife and their son and his family occupied the home farm as one family. Upon the probate of J. S. Todd's will, his wife, S. J. Todd, and son, O. K. Todd, qualified as executors. From that time on the farming business was conducted in their joint names through O. K. Todd, who seems to have assumed charge thereof. In 1912 O. K. Todd died intestate, leaving surviving him his widow and two children, Fred H. Todd and Mary Todd. His mother, S. J. Todd, and wife, Ella Todd, qualified as his administrators.

This suit was brought by S. J. Todd and Ella Todd, administrators of O. K. Todd, and by S. J. Todd, surviving executor of J. S. Todd, against O. K. Todd's infant children, Fred H. Todd and Mary Todd, and others, to construe the will of J. S. Todd and to settle both his and O. K. Todd's estates. The case was referred to the master commissioner to hear and report on claims, and numerous claims against the estate of O. K. Todd were filed and allowed. Fred H. Todd and Mary Todd, the infant children of O. K. Todd, answered through their guardian and set up the claim that under the will of J. S. Todd S. J. Todd and O. K. Todd took only a life estate with remainder to them, the answering defendants. The chancellor rejected this contention, and held that S. J. Todd and O. K. Todd took the fee. On appeal the judgment was reversed, this court holding that the widow and son of J. S. Todd took only a life estate, with remainder to the children of O. K. Todd. Todd's Guardian et al. v. Todd's Adm'rs et al., 155 Ky. 209, 159 S.W. 702. Upon the return of the case the creditors who had filed claims against the estate of O. K. Todd filed the same claims against the estate of the testator, J. S. Todd.

Prior to the death of the testator, J. S. Todd, he executed to H. D. Barker a note for $3,000, secured by a mortgage on the testator's land. At the time of the testator's death there remained due on this note about $2,700. Thereafter certain payments of principal and interest were made on the note by O. K. Todd. In the month of November, 1911, S. J. Todd and O. K. Todd applied to D. B. Wallace for a loan to discharge the balance of the Barker debt, agreeing to pay Wallace $100 for his services. Wallace arranged to obtain the loan from S. C. Hicks. Thereupon a new mortgage was executed by S. J. Todd and O. K. Todd to secure the loan of $2,100. Of this sum $1,912.20 was applied to the payment of the balance of the Barker debt. Wallace retained $100 for his services in securing the loan, and paid the balance to the mortgagors. The mortgage was executed in the belief that the mortgagors owned a fee in the land. The Barker mortgage was released.

In the claim of the Citizens' Bank of New Liberty for $1,123.60 there is included the amount of two notes executed by the testator, J. S. Todd, and O. K. Todd, aggregating, at the time of the testator's death, the sum of $727.

It further appears that O. K. Todd paid the testator's undertaking bill. It may be that, in addition to the balance of the Barker debt and the sum of $727 included in the claim of the Citizens' Bank of New Liberty and the undertaker's bill, there were other small debts owing by the testator at the time of his death. On this question we express no opinion at present.

On final hearing the chancellor rendered judgment against S. J. Todd and the estate of O. K. Todd in favor of the various claimants. He further adjudged in substance that under the will of the testator the executors were authorized to conduct the farm; that upon the death of O. K. Todd the debts due for the management of the farm did not exceed those due by the testator at his death; that the farm was not self-sustaining, and that certain banks supplied the excess to run the farm; that, as against the remaindermen, the executors were entitled to compensation for managing the estate; that in discharging the debts of the testator they were subrogated to the lien of his creditors; and that the executors' creditors who supplied the money to discharge, not only the testator's debts, but the debts incurred by the executors in the management of the farm, were subrogated to the rights of the executors as against the estate in remainder. He also held that all the debts incurred by the executors in the management of the farm were debts against the estate in remainder. The claimant Hicks was given a prior lien, not only on the life estate of S. J. Todd, but also on the estate in remainder. Thereupon the chancellor ordered the testator's land, or so much thereof as was necessary, sold for the purpose of paying the various claims allowed. From this judgment S. J. Todd, in her own right and as executor of J. S. Todd, and Fred H. Todd and Mary Todd, by their guardian, appeal.

1. After the rendition of the judgment of sale the land was sold in two tracts. F. A. Taylor became the purchaser of the 61-acre tract at the price of $3,873.50. Mrs. S. J. Todd, the life tenant, and Fred H. Todd and Mary Todd, the remaindermen, became the purchasers of the 281-acre tract at the price of $3,747.76. Thereafter the sales were confirmed, and bonds for the purchase price executed by the purchasers. Mrs. Todd and the remaindermen also took possession of the land which they purchased, paid two of the purchase bonds, and executed a mortgage on the land to J. P. Sidebottom and others. It is insisted on behalf of the appellee that because of the above acts by appellants they have ratified the judgment of sale, and are now estopped to assert its invalidity, and that appellees' motion to dismiss the appeal should be sustained.

If a person voluntarily acquiesces in, or recognizes the validity of, a judgment, order, or decree, or otherwise takes a position which is inconsistent with the right to appeal therefrom, he thereby impliedly waives his right to have such judgment, order, or decree reviewed by an appellate court. But, in order to bar the right of appeal on the ground of acquiescence, the acts relied upon must be such as to clearly and unmistakably show acquiescence, and it must be unconditional, voluntary, and absolute. 3 C.J. 665; Robinson v. Hays, 186 F. 295, 108 C.C.A. 373; James v. James, 55 S.W. 193, 21 Ky. Law Rep. 1401; Madden v. Madden, 169 Ky. 367, 183 S.W. 931. In the case under consideration the judgment of sale, as will hereafter be shown, subjected the estate in remainder to debts for which that estate was not liable. More land was sold than was necessary to pay the debts for which the estate in remainder was liable. One of the remaindermen was an infant. Every step in the proceedings leading up to the judgment of sale was contested by the appellants. With their entire estate ordered to be sold, the appellants were not in a position to supersede the judgment. The only way to protect their own interests was to purchase one of the tracts of land ordered to be sold. The circumstances of the parties affected have not been so changed that their rights may not be protected in case of a reversal. We therefore conclude that the acts relied on do not show such an unconditional and voluntary acquiescence in the judgment as to bar the right of appeal.

2. With respect to the various errors relied on for a reversal, our conclusions may be summed up as follows:

A. Under the will of J. S. Todd, as heretofore construed by this court, S. J. Todd, his widow, and O....