Voss v. Cook , 149 Ky. 18 ( 1912 )

Opinion of the Court by

Judge Miller

Affirming.

In 1875 Johann George Elfers, a resident of Butler County, Ohio, died testate, the material portions of his will reading as follows:

1. “I give and dispose of my estate, general, personal and mixed, of which I may die seized or possessed, to my beloved wife, Catherina Caroline Elfers to be and remain her absolute property during her natural life.

2. “I appoint my said wife executor of this my last will and testament, and request that no bond be required of her.

3. “I revoke all my former wills.”

At the time of his death the testator owned real-estate in Butler County, Ohio, and in Campbell County, Kentucky, and the will was, for that reason, probated in each of those counties. The widow qualified as executrix in Butler County, Ohio, and subsequently removed to Newport, in Campbell county, where she died testate July 11, 1911.

By the terms of her will, which was probated in Campbell County, Kentucky, Catherina Caroline Elfers devised and bequeathed her property, of every kind, to her granddaughter, the appellee Carrie M. Cook, in fee simple. Carrie M. Cook qualified as executrix of her grandmother’s estate. On February 26, 1912, the appellants, John B. Yoss, Fred W. Yoss and Gussie Yoss, grandchildren of Johann George Elfers, brought this action against Carrie M. Cook, as executrix of the estate of Catherina Caroline Elfers, deceased, for a settlement of' the estate of Johann George Elfers, and a division of his personal property between his grandchildren. By an amended petition they set np the fact that appellant Harry Healy, had been appointed administrator de bonus non with the will annexed of the estate of Johann George Elfers by the Campbell County Court on August 22, 1911, and made him a party plaintiff herein asking a settlement of his accounts as said administrator. The defendant Carrie Cook answered, denying that her grandfather, Johann George Elfers left any personal property of any kind, and asserted title in herself to the real estate in Campbell County under her grandmother’s will. She further alleged that the proceedings of the probate court of Butler County, Ohio, and the letters testamentary issued therefrom to said Catherina Caroline Elfers as executrix of her husband’s estate in 1875, showed that Johann George Elfers left no personal estate of any kind; and, as more than 36 years had elapsed since the death of the said Elfers, the order of the Campbell County Court attempting to grant an administration to Healy in August, 1911, was null and void, and of no effect whatever.

Construing the will of Johann George Elfers as having given his widow a fee simple estate in all the property of the testator, the circuit judge overruled a demurrer to the answer of Carrie M. Cook, and the plaintiffs declining to plead further, the petition was dismissed. From that order this appeal is prosecuted by the plaintiffs.

The only question argued upon the appeal is whether or no Mrs. Cook was holding the personal property which it is alleged she received from her grandmother’s estate, in her own right, or as trustee for the distributees of Johann George Elfers.

It is contended that since the testator was a resident of Ohio, and the will by its terms gave Mrs. Elfers her husband’s personal property absolutely, “during-her natural life,” she could take only a life estate in such personalty as he may have left, unless she took more under the laws of Ohio; and that appellee has not pleaded or sought to show that her grandmother, Mrs. Elfers, took other than a life estate under the laws of Ohio. It appears- however, from the answer and the transcript of the probate, court of Butler County, Ohio, filed with and as a part of the answer, that, Johann George Elfers left no personal estate; and the demurrer, upon which the case was decided by the circuit judge, admits that fact to be true. The record as it stands shows, therefore, that Johann George Elfers had no personal estate at the time of his death; and,- that being true, there is no estate to settle.

Judgment affirmed.