Wooten's Trustee v. Hardy

• Decision Date: 11 October 1927
• Citation: 221 Ky. 338
• Parties: Wooten's Trustee v. Hardy, et al.
• Court: United States State Supreme Court — District of Kentucky

221 Ky. 338

Wooten's Trustee v. Hardy, et al.

Court of Appeals of Kentucky.

Decided October 11, 1927.

1. Wills. — Insurance on life of testator, wherein his daughter was made beneficiary, constituted no part of testator's estate, and he had no legal right to dispose thereof.

2. Wills. — Where testator included in a devise of property to his daughter and to contingent remainderman life insurance money, which he had no legal right to devise in that daughter was made beneficiary therein, such part of the gift would be invalid and not binding on daughter but she could not accept property rightfully devised and deny testator's right to limit insurance money over to contingent remainderman, necessitating an election either to accept will in its entirety or retain insurance to which she was rightfully entitled, and forfeited all rights under will.

3. Wills. — Will, establishing a trust of all testator's property, including insurance money wherein daughter was beneficiary with provision for expending income for daughter's education and maintenance and certain contingent remainder over, held to establish testator's intention to bequeath such insurance money with sufficient clearness to require an election by devisee whether she would accept terms of will.

4. Wills. — An adult is not required to elect as to whether he will accept provisions of will until he has notice of a conflict of his interests and is advised as to rights thereunder.

5. Guardian and Ward. — Guardian's construction of will as bequeathing insurance in which ward was beneficiary and paying proceeds thereof to trustee under will held not binding on ward as an election to accept terms of will, since right of election is personal and cannot be exercised by guardian, trustee, or personal representative.

6. Wills. — Acts of minor before and after reaching majority held sufficient to show assent to terms of father's will bequeathing insurance money wherein she was beneficiary and to imply an election to accept terms of will, whereby she received income from trust fund during her life with certain contingent remainder over.

7. Trusts. — Under will establishing trust, income of which was to be used for daughter's maintenance and education with right to use principal if necessary, trustee was authorized after her death to pay claims for maintenance and education, together with expenses during last illness and burial expenses.

8. Wills. — In construction of wills or similar instruments, the word "relatives" is limited by confining it to next of kin who would take under statute of descent and distribution.

9. Wills. — Where will provided that residuary estate should be apportioned among surviving relatives, persons that would have inherited estate of testator if he had died intestate take as devisees under the will.

10. Wills. — Manner or character of apportionment among devisees is governed by intent of testator as expressed in the will.

11. Wills. — A provision in will for division among a class of persons equally, share and share alike, or where words of similar import are used, means a per capita and not a per stirpes division, unless a different intent is discoverable from the will itself.

12. Wills. — Under will devising residue to relatives in equal proportions, distributees held to take per capita, and not per stirpes; there being no different intent discoverable from will.

Appeal from Christian Circuit Court.

WHITE & CLARK for appellant.

H.W. LINTON, FRANK RIVES, guardian ad litem, and J.C. FLEMING warning order attorney for appellees.

OPINION OF THE COURT BY JUDGE McCANDLESS.

Reversing.

R.S. Wooten, a widower, died testate in December, 1920, survived by an only daughter, Esther, then 16 years of age, and leaving an estate valued at about $60,000; he also carried $11,000 insurance on his life in which Esther was the beneficiary. His will, in his own handwriting dated October 5, 1920, was duly probated in the Christian county court, the county of his residence. The will, to be more elaborately treated hereafter, provided for the sale of his property, the collection of the insurance money, and the creation of a trust fund; that Esther's maintenance and education should be limited to the income from this fund, except in the case of certain contingencies and an installment distribution of the trust estate to Esther beginning when she arrived at the age of 25 years, with a limitation over in the event she died without issue. His estate was converted into interest-bearing securities. The guardian of Esther collected the insurance policies, and the proceeds of these, together with all the funds arising from testator's estate, were turned over to the trustee named in the will, who managed and controlled same in accordance with its provisions.

Esther was unusually intelligent and industrious, was given a liberal education by the trustee, and developed into woman of rare charm. She lived with her aunt in Tennessee, and after her graduation became engaged to be married, but in the spring of 1925 developed tuberculosis and later contracted pneumonia from which she died in September of that year, at the age of 21 years and 8 months. She also left a will which was duly probated at that place. The expenditures for her maintenance and education exceeded the income of the trust estate and encroached upon the principal to the extent of over $1,600. During her last illness heavy bills were incurred for medical advice and attention, and in addition she was buried in a manner befitting her station in life, all entailing considerable additional expense. After her death questions arose (1) as to whether the proceeds of the insurance policies were devised to her by her father, or belonged to her independent of the will; (2) as to whether the expenses alluded to should be paid out of the corpus of the trust fund; (3) to whom and in what proportion the residuum of the trust estate passed upon the death of Esther. To determine these questions the trustee under the will of R.S. Wooten filed suit in the Christian circuit court setting up his construction of the will. The executor of the will of Esther Wooten and the heirs at law answered setting up their respective contentions. The judgment of the court upheld the contentions of Esther's executor, who will be referred to herein as appellee. The trustee under the will of R.S. Wooten appeals and will be referred to as the appellant. Reference will be made to the judgment in connection with our conclusions.

The pertinent provisions of the will of R.S. Wooten being:

Paragraph 2. "I give and bequeath to my daughter, Esther Morrison Wooten, all my property, real personal and mixed, after the payment of my debts, funeral expenses, etc., and the exceptions hereafter."

Par. 3. "It is my will and I direct that all my property — real and personal — be sold and converted into money as soon as possible and practicable and that it be paid to my daughter's trustee hereinafter named, except such notes, bonds and stocks I may own at my death not due, and that my daughter's trustee shall say are good and safe investments, all these and my life insurance policies, I will and direct shall be turned over to my daughter's trustee at once, who shall invest and keep invested all moneys in interest bearing and safe bonds, the interest to be used for my daughter's support and maintenance, or enough of it to enable her to live as her circumstances and position in life will justify and to afford her a good education; provided that the principal is not to be encroached upon unless in the judgment of her trustee it becomes urgent for her proper support and education. However, I do not contemplate such emergency, as I think the income from my estate will be ample, and indeed more than sufficient for my child's support and education."

Par. 8. "I nominate and appoint the City Bank & Trust Company, of Hopkinsville, Christian County, Kentucky, as Trustee for my daughter Esther M. Wooten, and it is my will that after paying cost of administration, the said Lacy, Elliott Williams and Barksdale, shall pay over all moneys belonging to my estate, to the said Trust Company, Trustee for the benefit of my said daughter."

Par. 9. "As my said daughter, like most young people is not likely to be well matured or settled by the time she reaches majority, it is my will that her said trustee postpone making settlement with her until she reaches twenty-five years of age, if she so long live. I direct that one-fifth of the whole of said principal be paid over to my daughter annually until she is thirty years of age, if she so long live; then I direct said trustee to pay over to her absolutely the whole of said principal sum together with any increment thereon. Provided, however that should my daughter in the meantime marry a practical frugal and industrious man, said trustee may in its discretion advance my daughter money to purchase her a home and for such other purpose as may be necessary to begin her married life comfortably, but in this would urge said trustee to be very judicious and circumspect."

Par. 12. "Should my daughter, Esther M. Wooten die without issue, it is my desire, and I so will, that all money held by my trustee from my estate and all that she may leave at her death that she has received from my estate shall be distributed as follows: I will that One Thousand Dollars be paid to Mrs. J.L. Ashbrook, Tampa, Florida, and Five Hundred Dollars to Mrs. E.R. Overby now in Tennessee. Then I will that my daughter be allowed to fix an amount if she so elects to be given to whomsoever may stand in the attitude of father or mother or both to her and for her; then should there be a residue amount remaining I will that One Thousand Dollars be paid to the President of the Bank of LaFayette, Kentucky and it be expended in improving and beautifying Powell Cemetery, near LaFayette, Kentucky, and Five Thousand Dollars paid over to the said President...