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Caskey v. Cowgill

November 30, 1951

CASKEY ET AL.
v.
COWGILL ET AL.



Combs

COMBS, Justice. William E. Caskey, a resident of Fayette County, Kentucky, died testate December 12, 1949. A widower at the time of his death, Mr. Caskey left surviving him three children, Ann Caskey Cowgill, Catherine Caskey Cowart, and William E. Caskey, III. He left an estate of the estimated value of $700,000, and in his will, which he prepared himself, nominated the First National Bank and Trust Company of Lexington as executor and trustee.

Paragraphs 1 through 6 of the will are clear and unambiguous. In these six paragraphs the testator directed payment of his debts, made various and sundry bequests, and directed the sale of certain horses which he owned at the time of his death. Paragraphs 7, 8 and 9 of the will contain certain ambiguities. The bank, as executor and trustee, filed this declaratory judgment suit against all the beneficiaries for a construction of the will and a declaration of the rights of the parties. From the judgment entered by the trial court, appellants have appealed and appellees have cross-appealed.

We set forth verbatim Paragraphs 7, 8 and 9 of the will:

'7. I appoint and nominate the First National Bank and Trust Co. of Lexington, Kentucky as trustee under this will and expressly give them the right as Trustee and Executor to hold, manage, and operate the residue of my estate in trust on the following conditions and for the following uses and enjoyment of the following named persons, giving to my Trustee the authority to manage and control and operate my estate, said trust to remain in full force and effect until the death of the last of my three children hereinafter mentioned. After the payment of taxes, fees, and necessary charges, I direct the net income from my estate be paid by trustee to the following named persons in installments convenient to them.

'Residue of estate be divided into three parts:

'One part consisting of nine twentieths, 9/20, of the residue in trust, income to be paid to Ann Caskey Cowgill for her life; at her death if she leaves issue, this trust to terminate and go outright to her surviving children and the issue collectively of any deceased child, share and share alike, latter taking the share which the deceased child would have taken if living.

'One part consisting of nine twentieths, 9/20, of the residue in trust, income to be paid to Catherine Caskey Cowart for her life; at her death if she leaves issue, this trust to terminate and go outright to her surviving children and the issue collectively of any deceased child, share and share alike, latter taking the share which the deceased child would have taken if living.

'One part consisting of two twentieths, 2/20, of the residue in trust, income to be paid to William E. Caskey III for his life; at his death if he leaves issue, this trust to terminate and go outright to his surviving children and the issue collectively of any deceased child, share and share alike, latter taking the share which the deceased child would have taken if living.

'If either of my children dies without issue surviving, the trust for that child shall be transferred to and become a part of the trust or trusts for my other child or children, share and share alike, to be administered in accordance with the terms of that trust.

'8. If none of my children or their issue are living to receive the principal of my estate at termination of the last of the trust or trusts provided for, my estate shall go to my heirs at law to be determined at that time by laws of descent and distribution now in effect.

'9. I direct my executor and trustee to give complete possession of my Bramble Farm, located on the Winchester Pike, Fayette County, Kentucky, and the residence thereon, together with all farm equipment, to my daughter Ann Caskey Cowgill, to occupy the residence as a home and operate the farm for her sole benefit and profit as she may see fit during her lifetime. The taxes and fire insurance are to be assumed and paid by my executor and trustee from income of the Trust Estate. I request my daughter Ann Caskey Cowgill to keep the improvements in a good state of repair.'

The questions submitted to the trial court, and which are presented on this appeal, are:

'1. Did the testator, by his will, create a single trust or three separate trusts, to be administered separately for the use and benefit of his three children and their issue?

2. Does the trust, if only one was created, remain in full force and effect until the death of the last of his three children, or do the three trusts, if such there be, ...


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