Yager's Adm'r v. Bank of Kentucky

• Decision Date: 22 March 1907
• Citation: 125 Ky. 177,100 S.W. 848
• Parties: YAGER'S ADM'R ET AL. v. PRESIDENT, ETC., OF BANK OF KENTUCKY ET AL.
• Court: Kentucky Court of Appeals

100 S.W. 848

125 Ky. 177

YAGER'S ADM'R ET AL. v. PRESIDENT, ETC., OF BANK OF KENTUCKY ET AL.

Court of Appeals of Kentucky.

March 22, 1907

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

"To be officially reported."

Action by W. H. Yager's administrator and others against the president, directors and company of the Bank of Kentucky and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

Barnett & Barnett, James S. Morris, and Hardin H. Herr, for appellants.

Alex. G. Barrett, for appellees.

SETTLE J.

This is an appeal from a judgment of the Jefferson circuit court second chancery division, sustaining a demurrer to the petition, a motion to strike therefrom the name of F. J Yager, as administrator de bonis non, with the will annexed of the estate of W. H. Yager, deceased, and dismissing the action.

This action was instituted by the appellants, F. J. Yager and Lizzie R. Lewis; the former suing as administrator de bonis non of the estate of W. H. Yager, deceased, and in his own right as an heir at law of the decedent, and the latter as assignee of Lucinda R. Schrader and Eliza J. Galbreath sisters, and also heirs at law, of W. H. Yager, deceased. It is, in substance, averred in the petition that W. H. Yager died in Jefferson county in 1891, leaving a last will and testament, which was shortly thereafter duly admitted to probate by the Jefferson county court. The first clause of the will directs the payment of the testator's just debts and funeral expenses. The second clause contains the following provision: "I will and devise unto my beloved wife, Nannie R. Yager, for and during the natural term of her life, all of the income, profits and dividends of all my estate of every kind and description, which I may own, or in which I may be interested, at the time of my death, wheresoever the same may be situated. Out of this income she shall pay the taxes and insurance to the same extent that my property is now insured and reasonable repairs, and after the payment of the same, the said income, profits and dividends shall become hers to do with as she pleases." Clause third appoints the testator's wife executrix of the will without bond, and directs that no appraisement of the estate be made by the executrix, and that "she be not required to file any inventory, or sell any of my property at public or private sale." It is further averred in the petition that the testator's wife, Nannie R. Yager, duly qualified as executrix of the will, and by virtue thereof took possession of all the estate devised, and retained the same, or such part thereof as she did not expend or waste, until her death, which occurred December 26, 1904; that among other property left by the testator and received by the executrix of the will were 10 shares of the capital stock of the Bank of Kentucky, of the par value of $100 each, which she wrongfully and illegally sold at the price of $1,900 to a purchaser procured by the Bank of Kentucky and its officers; that the sale of the bank stock by the executrix was advised by the officers of the bank, and they assisted her in effecting it, though it was not necessary to sell the same or any part thereof, as the executrix was then receiving and enjoying an income of $5,000 from the estate left by the testator.

The petition contains, in substance, the further averment that as, under the will of her husband, Mrs. Yager was only entitled during her life to the income, dividends, and profits of the estate devised by her husband, subject to the charges for the payment of taxes and insurance, and the will made no disposition of the estate beyond her death, the same at her death descended under the statute to the testator's next of kin and heirs at law, as he left no children surviving him or his wife; that the bank stock in question was a part of the corpus of the estate, only the income of which she could use, and its sale constituted a conversion of the same by her and the Bank of Kentucky and its officers, and was a fraud, actual or constructive, upon and against the heirs at law of the testator, entitled to take the bank stock at the death of the widow; that the latter as executrix only held and controlled the bank stock under a trust created by the will with the right to her to enjoy its dividends; and that the bank and its officers advised and assisted her to make the sale thereof with notice of the provisions of the will and knowledge that she had no right to sell it, which facts, it is charged, made such officers, the Bank of Kentucky, and the National Bank of Kentucky, its successor, and the present owner of its assets and business, liable to the heirs at law for the value of the bank stock, for which reason the latter bank was also made a defendant to the action, and recovery sought against it. It also appears from the averments of the petition that the appellant F. J. Yager was a brother and is an heir at law of the testator, and that the appellant Lizzie R. Lewis, as a purchaser and by assignment, is the owner of two shares in the testator's estate that upon the death of the widow fell to his two sisters, Lucinda R. Schrader and Eliza J. Galbreath, as heirs at law and remaindermen under the will. There appears to be at least one other heir at law, a brother of the testator, who does not seem to have been made a party to the action, either as plaintiff or defendant.

As heretofore stated, the lower court sustained a demurrer to the petition, and also a motion to strike therefrom the name of appellant F. J. Yager, as administrator de bonis non. Although appellee filed both a general and...