Walton Bank & Trust Co. v. Carpenter

• Decision Date: 21 November 1924
• Citation: 205 Ky. 629
• Parties: Walton Bank and Trust Company v. Carpenter, et al.
• Court: Kentucky Court of Appeals

Page 629

205 Ky. 629

Walton Bank and Trust Company v. Carpenter, et al.

Court of Appeals of Kentucky.

Decided November 21, 1924.

Appeal from Boone Circuit Court.

S. D. ROUSE, CHAS. STROTHER and DICKERSON & DICKERSON for appellant.

O. M. ROGERS for appellees.

OPINION OF THE COURT BY CHIEF JUSTICE SAMPSON — Affirming.

Lucy J. Carpenter made her last will on February 2, 1920, and died May 1, 1922, survived by her husband, Willie Carpenter, and eight children. She had been twice married, each time to a husband named Carpenter. By her first marriage she had three children named Ben, Wood and Johnnie, the latter being a daughter. All three of these older children were married and living away from the parental home at the time of the making of the will. Her children by her second husband were Alice, Rowena, Ralph, Claude, Ruby and Blanche. After the making of the will Rowena died childless and intestate.

This action was commenced by the bank, as administrator of Mrs. Carpenter, praying that the accounts of the administrator be fully and completely settled in accordance with the construction of the will, and praying for a construction of the will, and that the cause be referred to the master commissioner to make a full and final settlement of the accounts, and that the master commissioner ascertain the amount in advancements made by testatrix to her children and the amount to be charged to each of them, the amount of indebtedness of the children to testatrix, with a final prayer that the chancellor advise the administrator concerning its duties in the premises and for all proper relief. The will was holographic, and reads:

                                             "At Home, Feb. 2nd, 1920
                

"I this day am alone with not anyone to dictate or to influence me. Ben, Wood and Johnnie my three oldest children have had $500.00 five hundred dollars apiece paid to them, & I want my 6 youngest to have the same. & Ben owes me $5,000.00 which must be deducked from his part. & I furnished Wood $1,000.00 one thousand as alimony to furnish in a settlement with the lawyers in his divorce suit, & he oes me $3,000.00 three thousand money that I have paid for him in Bank & rent for him in Walton all amounting to good $4,000.00. And I have not paid anything to Johnnie, so except the $500.00, she comes in with the rest. But I want $150.00 for Alice, $25.00 for Rowena, $50.00 for Ralph, $50.00 for Claude, $100.00 for Rubye and $125.00 for Blanche. Now this i think they deserve for deeds of kindness. Now I hope this will be carried out, I am on Ben's notes, but I have to sign first as they wont take me as security & I am on Woods note all so far only $400.00, and had to sign fust as they wont take me as security. give Willia $10.00 as he has been well remembered before. I paid $6,000.00 in full for this 120 acres, and I paid for 30 or 35 across the pike from Uncle Gaines Robinson, I have no debts as I know & no notes in bank I have not got Bens nor Woods notes, but they know full well & wont deny that they oe me every dollar, I will ask them for the note if I get well and see them this is my will wrote and dictated by me this Feb. 2nd, 1920.

                                       "LUCY A. CARPENTER."
                

After setting out the will, the petition avers:

"Plaintiff says there is a contention amongst the heirs and devisees of Lucy A. Carpenter, deceased, as to the import and meaning of said will, and this plaintiff is unwilling to take the risk of construing same, and is unable to construe it in such a manner as to protect it in the execution of said will, and so as to administer said estate, and seeks and is entitled to the advice and instruction of the court therein."

All facts with respect to the property owned by Lucy A. Carpenter at the time of her death are set forth in the petition. It also contains averments as to the amount of advancement made to each child and all other facts necessary to enable the court to properly construe the will and to determine the rights of the several parties. No demurrer or answer was filed to the petition. It is the only pleading in the record. The parties agree that the petition correctly set forth the character and extent of the estate of the decedent as well as the names of all her next of kin and heirs at law, and thus dispenses with necessity for proof. When the matter was submitted to the court, judgment was entered holding that the testatrix by her will did not intend to and did not in fact dispose of her entire estate but devised to her five younger children, to-wit, Alice, Ralph, Claude, Ruby and Blanche, the sixth child, Rowena, having died before her mother, the sum of five hundred dollars each, to equalize them in the matter of advancement with the three older children, and in addition to the foregoing she devised to Alice one hundred and fifty dollars, to Ralph fifty dollars, to Claude fifty...