DeWitt v. Fugate , 144 Ky. 568 ( 1911 )

Opinion op the Court by

William Rogers Clay, Commissioner

— Reversing.

By her will, dated March 11th, 1882, and which was afterwards probated and recorded in Logan County, Kentucky, Eliza J. Bowling devised all of her property to Albert M. Angel and his wife, Lizzie B. Angel, for life, with remainder to their children, subject to a charge in favor of the mother of the testatrix. The Angels had six children, one of whom died prior to the death of Albert M. Angel., The estate owned by Mrs. Bowling consisted of a little over $9,000; $3,000 was invested in a store house and lot in Adairville, and $6,000 in a farm consisting of about 100 acres which is located in Logan County. At the time of the institution of this suit -there was in the hands of M. L. Fugate, trustee for the infant defendants, $458.51 in cash. On August 22nd, 1902, Albert M. Angel and bis wife, Lizzie J. Angel, mortgaged tbeir life interest in tbe 100 acres of land to one E. H. Fugate, for the purpose of securing a loan of $1,000 made to them on that day. At tbe time of tbe institution of tbis action the mortgage debt amounted to about $800.

This action w,as brought by Lizzie J. Angel and M. L. Fugate, trustee, against tbe mortgagee, E. H. Fugate, and tbe five infant children of Albert M. Angel and Liz-die J. Angel. Tbe purpose of tbe a'etion was to have tbe $458.51 in tbe bands of M. L. Fugate, trustee, applied to tbe payment of tbe mortgage debt incurred by Albert M. Angel and Lizzie J. Angel. Tbe guardian ad litem who bad been appointed by tbe court interposed a demurrer to the petition on behalf of the infant children. Tbis demurrer was sustained. Thereupon plaintiffs amended their petition and charged that tbe present cash value of Lizzie J. Angel’s life estate in and to tbe fund of $458.51 then in the bands of M. L. Fugate, trustee, was $311.05, and that her one-twelfth undivided interest in said fund, derived from her infant child who died, amounted to $38.20. Tbe guardian ad- litem demurred to tbe amended petition. This demurrer was overruled. Thereupon the court entered judgment by which be directed that tbe $311.05, being tbe present cash value of Lizzie J. Angel’s life estate in tbe fund of $458.51, and that tbe further sum of $38.20, being an undivided one-twelfth interest of Lizzie J. Angel in and to said fund, tbe two together amounting to $349.25, should be paid to the mortgagee, E. H. Fugate, and credited on tbe note then held by him. Plaintiffs’ attorneys were allowed a fee of $15, and tbe guardian ad litem a fee of $15. The judgment further provided that $109.26, being the balance in the bands of tbe trustee after deducting tbe aforesaid sum of $349.25, when paid over should be applied as a further payment on tbe E. H. Fugate note. Tbe court also authorized tbe parties to apply not moré than $100 of tbe annual rental of tbe farm to tbe gradual extinguishment of tbe mortgage debt. From that judgment the guardian ad litem, in behalf of tbe infant defendants has prosecuted tbis appeal.

We have no doubt of tbe good'faith of tbe parties to tbis action, and are confident that tbe purpose of tbe action was to prevent tbe infant defendants from being deprived of a home in tbe event tbe mortgagee saw fit to foreclose Ms mortgage on Lizzie J. Angel’s life interest. The chancellor gave his approval to the plan and entered the judgment in the evident belief that it would best protect the rights of the infants. In our opinion, however, the chancellor hais no power to apply any portion of the corpus of an estate, in which infants have a remainder interest, to the payment of the debt incurred by one who has a life interest in the fund proposed to be thus applied. The life tenant is entitled only to the income from such fund. The infant remaindermen are entitled to have the corpus of the fund transmitted to them unimpaired. If the life tenant’s cash interest in the fund in question could be applied to the debt, then for the same reason a portion of the real estafe might be sold and the proceeds applied the same way; and if the present debt due by the life tenant can be extinguished in this manner there is no reason why the life tenant may not incur additional debts and have the corpus of the estate applied in the same way to the payment of these debts, and thus reduce the estate until there is practically nothing coming to the infant defendants. Even the possibility that the plan proposed might in the case before us work out to the advantage of the infant defendants is not sufficient to justify us in establishing a rule by which an infant remainderman’s property could be subjected to the debts of the life tenant, and thus run the risk of seriously impairing the estate wMch w'ould eventually come to the infant.

As the case is before the chancellor he may, upon proper application by the parties in interest, direct that a certain portion of the farm be rented out and that a certain part of the rent be applied to the extinguishment of the mortgage debt. In this way he may protect the infant defendants in the enjoyment of their home, and at the same time provide for the extinguishment of the debt in a manner that will not make the infants’ remainder interest liable for the debts of the life tenant.

Judgment reversed and cause remanded for further proceedings consistent herewith.