Weedon v. Power

• Decision Date: 28 March 1924
• Citation: 202 Ky. 542,260 S.W. 385
• Parties: WEEDON ET AL. v. POWER.
• Court: Kentucky Court of Appeals

260 S.W. 385

202 Ky. 542

WEEDON ET AL. v. POWER.

Court of Appeals of Kentucky.

March 28, 1924

Appeal from Circuit Court, Mason County.

Action by Elizabeth W. Power, individually and as administratrix with the will annexed of the estate of John H. Wilson deceased, against Anna Weedon and others. From the judgment defendants appeal and plaintiff cross-appeals. Judgment affirmed on original appeal, and cross-appeal dismissed.

John P McCartney, of Flemingsburg, and Worthington, Browning & Reed of Maysville, for appellants.

John D. Carroll, of Frankfort, and Charles L. Daly, of Maysville, for appellee.

THOMAS J.

John H. Wilson died in 1887 testate and a resident of Mason county, leaving surviving him his widow, Mary C. Wilson, and two daughters, Sallie Morrison Wilson, who was then married to a Mr. Browning, and appellee and plaintiff below Elizabeth Wilson, who afterwards married a Mr. Power. Mrs. Browning died without living issue, or descendants of any who were dead, in 1889, and her husband died in 1897. The widow, Mary C. Wilson, died in 1908, and plaintiff, the sole surviving descendant of the testator, is now something over 50 years of age and has no children. The testator owned at the time of his death, and which he disposed of by his will, six pieces of real property, designated in the record as parcels "A," "B," "C," "D," "E," and "F," the latter of which is a farm on the Maysville and Mt. Sterling Pike containing about 216 acres; while the others are city property located in Maysville, "B" being the residence of testator and "E" is a lot upon which is situated a dilapidated livery stable.

This action was brought by plaintiff in her individual capacity and as administratrix with the will annexed of her father, against all of his collateral heirs, who are the appellants and defendants below, to construe his will in so far as it made disposition of the real property, and to procure a judgment for the sale of the city property for reinvestment in farm lands, which she alleged was necessary to prevent loss, and for the further purpose of dividing the property so as to give her one half of it absolutely and a life interest in the other half, which she claims she was entitled to under a proper construction of the will. The trial court construed its provisions, as applicable to the real estate, as contended for by plaintiff and ordered a sale for reinvestment of the livery stable lot, but deferred taking action with reference to the sale of the other parcels of the city property, and from so much of that judgment construing the will, as indicated, defendants prosecute this appeal and plaintiff has prayed a cross-appeal seeking an order from this court directing the trial court to adjudge the sale of the other city property and a reinvestment of the proceeds.

In the first clause of the will the testator gave to his wife all of his real estate of every kind so long as she remained his widow, with the right to control and manage it for her benefit and that of his two daughters. In the same clause he gave to his executors power to sell and convert into money all of his real estate, except his residence and his farm on the pike, and empowered them to collect all money due him, and after paying the cost of administration, they were directed to invest the surplus in land and take the title thereto to his wife and his two daughters for the use and benefit of them and her during her widowhood, "with remainder to my two daughters upon the death of my wife, or her marriage before that event, one moiety to each for her life, with remainder over in fee to the issue of each, alive at her death, if any, of her moiety: in case either of my daughters should die without issue alive at her death, or should both die without such issue, then the moiety of the daughter or daughters so dying to vest in my heirs at law alive at such time or times." In the second clause of his will he provided that on the death of his wife or her marriage all of his real estate and personalty should go to his two daughters, "to their sole and separate use, free from the control of any husband that they, or either of them may have; one moiety to each, for her life, with remainder over to her issue alive at her death if any she have; but should either of my daughters die without issue alive at her death, or should both so die, then the moiety of the daughter or daughters so dying shall vest in my heirs at law, alive at such time or times; provided; that any cash, stocks, choses or other personalty, not reinvested as directed in clause one, at the death of my wife, or her marriage as aforesaid; shall not be subject to the above limitations over to the issue of my daughters, but vest in them in equal shares forever, to their sole and separate use as aforesaid."

The executors never exercised any of the powers of sale or reinvestment cenferred upon them by the will, and none of the property was sold nor was any reinvestment made; but the real property remained and was, at the time of the filing of the action, in the same condition as when the testator died. It does not appear...