Wintuska v. Peart

• Decision Date: 27 February 1931
• Citation: 237 Ky. 666,36 S.W.2d 50
• Parties: WINTUSKA v. PEART et al.
• Court: Kentucky Court of Appeals

36 S.W.2d 50

237 Ky. 666

WINTUSKA v. PEART et al.

Court of Appeals of Kentucky

February 27, 1931

Appeal from Circuit Court, Logan County.

Suits consolidated and prosecuted as one, by John N. Peart and others, and by the administrator with the will annexed of William L. Peart, against Frederick A. Wintuska. From a judgment in favor of plaintiffs, defendant appeals.

Affirmed.

S. Y Trimble, of Hopkinsville, and Coleman Taylor, of Russellville, for appellant.

W. V Perry, of Russellville, for appellee Eldon McCormick administrator of Mrs. Sallie Peart, deceased.

Laurence B. Finn and N. P. Sims, both of Bowling Green, for other appellees.

DIETZMAN J.

Wm. L. Peart died testate, a resident of Simpson county, Ky. in February, 1923. By the first four clauses of his will, he directed that his debts and funeral expenses be paid, and he disposed of $3,000 in specific bequests. By the sixth clause of his will, he made his wife, Sallie M. Peart, executrix of his estate. By the seventh clause he requested his foster son, the appellant F. A. Wintuska, to advise with his wife in the settlement of his estate, and he bequeathed to Wintuska the sum of $250 for such services and in appreciation of the esteem in which he held him. The residue of the testator's estate was disposed of by clause 5 of the will, the construction of which is involved in this lawsuit. That clause reads as follows:

"After satisfying the above specific devises, I will to my wife, Sallie M. Peart, the remainder of my entire estate of whatsoever it may consist whether realty, personalty or mixed, to use, manage and control as she may wish without any restrictions whatever, hereby investing her with full power to sell and convey by deed or otherwise any property herein willed to her. But when my said wife shall come to die, if she so desires, she may give or will one-half of whatsoever of my estate then remains in her possession to the children of S. S. Phillips, Frank Phillips, Jennie Hines Phillips Larue and Mary Phillips, the remaining half to be divided equally to my two brothers, John W. Peart, and James A. Peart, and my two sisters, Lucy H. Peart and Ada B. Peart."

Sallie M. Peart qualified as executrix under this will. She caused an appraisement of the estate of her husband to be made which she signed as an inventory, and on March 8, 1924, she made a settlement as executrix of her husband with the judge of the Simpson county court, showing the total receipts which came to her hands to be $14,586, and after paying the indebtedness, expenses, and special bequests, that she receipted for the residue of $9,327.35. In addition to this sum, she received $3,000 from a life insurance policy on the life of Mr. Peart. In January, 1926, Mrs. Sallie Peart died testate in and a resident of Logan county, Ky. By her will she directed the payment of her debts and funeral expenses, made a specific bequest of $5 to her brother, Sam S. Phillips, and devised the residue of her property to her foster son, the appellant F. A. Wintuska, a resident of St. Louis, Mo. After her death, two suits were instituted, one being brought by John M. Peart, Lucy H. Peart, Ada B. Peart, and the children of James A. Peart who had died in the meantime, to recover one-half of the estate of Wm. L. Peart on the theory that they were remaindermen under the proper construction of the fifth clause of Wm. L. Peart's will. The other suit was brought by the administrator with the will annexed of Wm. L. Peart to recover the other half of the estate of Wm. L. Peart on the theory that under a proper construction of the fifth clause of Wm. L. Peart's will, Sallie M. Peart took only a life estate with a special power of appointment as to one-half of said estate and she having failed to exercise that power of appointment, such half of the estate was undevised estate of Wm. L. Peart. Inasmuch as any recovery the administrator might make in his suit would go for the benefit of the same parties who were prosecuting the other suit as remaindermen under the will of Wm. L. Peart, the two suits were consolidated and prosecuted as one. The cases having been consolidated, the petitions and subsequent pleadings of the parties plaintiff are thereafter to be treated as those of each party plaintiff. Strader v. Miller, 236 Ky. 637, 33 S.W.2d 668. In these suits, it was claimed that in order to defeat the remaindermen, the appellant Wintuska and Sallie M. Peart had converted certain Liberty bonds belonging to the estate of Wm. L. Peart, deceased, and which had come into the possession of Sallie M. Peart. For the value of these bonds they asked personal judgment against Wintuska and the estate of Sallie M. Peart in the sum of $8,250. An order of attachment was sued out and duly levied on certain property of Wintuska. By his answer, Wintuska took the position that by the fifth clause of Wm. L. Peart's will, Sallie M. Peart was devised a fee simple in the estate of her husband and that therefore the limitations over were void. He also denied any conversion on the part of Mrs. Peart or on his part of any of the estate of Wm. L. Peart. After proof had been taken, the court construed the will in accordance with the theory of the plaintiffs and further held that Mrs. Peart and Wintuska had conspired to convert and had converted the Liberty bonds belonging to the estate of William L. Peart to defeat the remaindermen. It gave judgment against the estate of Sallie M. Peart and Wintuska for $8,250 and sustained the attachment that had been sued out on his property. From that judgment this appeal is prosecuted.

The first question presented is as to the proper construction to be given to the will of Wm. L. Peart. The parties are agreed that where an estate is devised in fee, a gift over of what is left or not disposed of by the first taker is void. On the other hand, where only a life estate is given the first taker, the limitation over is valid. Does the estate which Wm. L. Peart devised to his wife fall within the first of these two classes or the second? Numerous cases involving the question whether the particular devise under discussion falls within the one class or the other may be found in our Reports and some of them have been very troublesome to decide. But out of the plenitude of decisions, there have emerged two controlling principles. The first of these is thus summarized in Sisson v. Sisson, 208 Ky. 843, 272 S.W. 15:

"The pivotal question in every case is, Did the first devisee take a fee or life estate? and one of the tests is, Was he given the unlimited power of disposition?"

The second principle, common to all cases of will construction, is that the intention of the testator as gathered from the will as a whole and from the language employed by the testator in writing it is to control, regardless of collateral and subsidiary rules which may be employed in arriving at such intention when its expression is obscure. Jones v. Jones' Ex'rs, 198 Ky. 756, 250 S.W. 92; State Bank of Eau Gallie v. Rose's Adm'r, 219 Ky. 562, 293 S.W. 1087; Walker v. Irvine's Ex'r, 225 Ky. 699, 9 S.W.2d 1020. In Greenway v. White, 196 Ky. 745, 246 S.W. 137, 139, 32 A. L. R. 1385, we said:

"It may be admitted that some of the earlier decisions, including, perhaps, some from this court, under the ancient common-law doctrine that there could be no limitation upon a fee, held that, where a will or other instrument of conveyance gave an estate absolutely to one with express or implied power of unrestricted disposition, the estate could not be reduced by any subsequent provision of the instrument, but the courts generally, including this one, have long since come to the conclusion that the rule requiring the intention of the maker, either of a will or deed, as gathered from the entire instrument, to prevail, overshadows and dispenses with the ancient technical, common-law rule, and that, where it appears from the entire language of the will or deed that it was the intention of the maker to limit the estate given or granted to less than an absolute one, that intention will prevail."

Applying these two principles to the devise here in question, we find that by it Sallie M. Peart was devised the residue of Wm. L Peart's estate "to use, manage and control" as she might wish "without any restrictions whatever," and "with full power" on her part "to sell and convey by deed or otherwise" said property. The testator then provided that when his wife died she might, if she so desired, "give or will one-half" of the testator's estate then remaining in her possession to the children of S. S. Phillips, "the remaining half to be divided equally" among the testator's brothers and sisters. Do these provisions invest Sallie M. Peart with an unlimited power of disposition of the estate devised to her? Did the testator intend to invest her with such an unlimited power? The unlimited power of disposition comprises not only conveyances inter vivos but also the power to dispose of by will if the devisee so wishes and as the devisee may wish. Now had Wm. L. Peart by this fifth clause of his will devised his estate to his wife "to use, manage and control as she may wish without any restrictions whatever *** with full power to sell and convey by deed or otherwise" the property devised, any property not disposed of by her in her lifetime to go as the testator directed, the case would fall within the rule of Wells v. Jewell, 232 Ky. 93, 22 S.W.2d 414; Barth v. Barth, 38 S.W. 511, 18 Ky. Law Rep. 840; Plaggenborg v. Molendyk's Adm'r, 187 Ky. 509, 219 S.W. 438; Commonwealth v. Stoll, 132 Ky. 234, 114 S.W. 279, 116 S.W. 687; Becker v. Roth, 132 Ky. 433, 115 S.W. 761; Nelson v. Nelson, 140 Ky. 410, 131 S.W. 187; and of many others cited and relied upon by the appellant....