This appeal involves the construction of the will of Gilbert C. Mann, Sr., who died at the age of forty-eight on January 30, 1952, a domiciliary resident of Kenton County, Kentucky, with a lucrative proprietary business across the Ohio River in Cincinnati, Ohio. At the time his will and codicil were executed, on November 7, 1947, and March 11, 1948, respectively, Mr. Mann's family consisted of his wife, Frances S. Mann, and their son, Timothy Gilbert Mann, who was born January 26, 1946. By testamentary trusts, Mr. Mann attempted to secure the welfare of his wife and young Timothy, but on March 15, 1950, another son, Gilbert C. Mann, Jr., arrived with legal consequences which his father, no more than he, apparently appreciated. Mr. Mann's failure to revise his will after the birth of Gilbert, Jr., introduced the complicating factor of a pretermitted child into his testamentary plans, and compelled his executor to ask the court for instructions.
It is apparent from the provisions for Timothy in the will, and conceded by all litigants, that Mr. Mann had no intention to exclude his children as a class. As a consequence, Gilbert, Jr., is a pretermitted child who, under the provisions of KRS 394.380(2), shall succeed to the portion of his father's estate 'that he would have been entitled to if the testator had died intestate; toward raising which portion the devisees and legatees shall, out of what is devised and bequeathed to them, contribute ratably, either in kind or in money, as the court deems proper.' The possible effect of this pretermission on the powers of the executors and trustees under the will has resulted in the widow, Frances S. Mann, refusing to qualify as either co-executor or co-trustee until it can be determined whether it would be better for both herself and her children to renounce the will under the provisions of KRS 392.080, and elect to take her dower and distributable share of her husband's estate. Ordinarily, this statutory power of renunciation must be exercised within a year of the probate of the will which occurred February 5, 1952, but the chancellor granted her 'to any time within two months after the determination of her rights in this estate by our courts by a judgment which shall have become final by expiration of time for appeal or affirmance on appeal.' Where an intelligent election is impossible, as we believe it is in the case at bar, the chancellor has the power to extend the time for making an election, Smither v. Smither's Ex'r, 9 Bush. 230, 72 Ky. 230; Brewer's Ex'r v. Smith, 242 Ky. 175, 45 S.W.2d 1036, if requested to do so within the one-year period. Moise v. Moise's Ex'r, 302 Ky. 843, 196 S.W.2d 607.
As heretofore intimated, most of this estate is located in the State of Ohio where the Fifth-Third Union Trust Company of Cincinnati qualified as administrator with the will annexed. The Probate Court of Hamilton County, Ohio, under the authority of Ohio General Code, § 10509-78, in the exercise of its discretion set aside to Mrs. Mann and her children the sum of $20,000 as a year's allowance for their support, to be charged against the real estate of the decedent in Ohio in accordance with the statute. The Ohio statute expressly provides 'that no such allowance shall be set off if the laws of the state of decedent's residence make provision for year's allowance for widows and children of resident decedents.' We have no statutory provisions in Kentucky for the granting of living allowances to the widows and minor children of our deceased citizens. The power to grant such an allowance in these circumstances is dependent upon statutory provisions, 21 Am.Jur., Executors & Administrators, § 314, page 560, and it is said in 21 Am.Jur., Executors & Administrators, § 316, page 561, 'A probate court of one state does not have jurisdiction to decree an allowance to a widow of a nonresident decedent from property in its jurisdiction on which there is ancillary administration,' citing Smith v. Howard, 86 Me. 203, 29 A. 1008, 41 Am.St.Rep. 537, and Jaeglin v. Moakley, 236 Mo.App. 254, 151 S.W.2d 524, as authority for the statement. However, in neither of those cases was there statutory authority to make allowances, and both decisions stress the fact that no such allowances were made at common law.
In discussing the provisions of the Ohio General Code as to the administration, in Ohio, of the estates of nonresident decedents, the Probate Court of Montgomery County, Ohio, in its opinion In re McCombs' Estate, 80 N.E.2d 573, stresses the right of Ohio, as a phase of procedural as distinguished from substantive law, to control the administration of property of a nonresident decedent located in Ohio and, we infer, to grant a living allowance to a nonresident widow and minor children, as authorized by statute, without violating the comity between the states. It is significant that the granting of the allowance is discretionary with the Ohio Probate Judge, and does not come to the widow as a matter of right as in the case of an exemption. It is also significant that the Ohio statute, G.C. of Ohio, § 10509-78, stipulates that the allowance shall be charged to the Ohio real estate of the estate of the decedent, the devolution of which is controlled by Ohio law. The devolution of personalty of the estate located in Ohio is not involved. Consequently, we do not believe the Ohio statute which authorizes the allowance as a charge against Ohio real estate violates any of the principles of comity between the states, but is solely an expression of Ohio's public policy within that state's proper domain. We conclude, therefore, that there is no legal reason why the portion of the estate ultimately allotted to the widow, Frances S. Mann, should be charged with the $20,000 living allowance allotted her by the State of Ohio for the support of herself and young children as contended by the guardians ad litem of the children.
Before entering upon a discussion of the remaining specific questions presented by this litigation, we quote the pertinent provisions of the will:
'Second: If the residue of my estate, after payment of all estate taxes and inheritance taxes chargeable to my wife and son, debts and expenses of administration shall exceed in value the sum of Fifty Thousand ($50,000.00) Dollars. I direct that from such excess the sum of Two Thousand ($2000.00) Dollars be paid unto each of my nieces, Mary Minnette Whaley, Ann Whaley and Ruth Whaley, and the sum of Four Thousand ($4000.00) Dollars be paid to my sister, Adaline M. Whaley.
'Third: All the rest and residue of my estate I give devise and bequeath unto my Trustees, hereinafter named, for the following uses and purposes:
'(a) I direct that all of the net income from this trust be paid to my wife, Frances S. Mann, until my son, Timothy Gilbert Mann, becomes twenty-five years of age, after which time if there be any income in excess of Two Hundred ($200.00) Dollars per month, such excess, or not to exceed One Hundred ($100.00) Dollars per month, shall be paid to my said son and the remaining part of said income be paid to my said wife until my said son becomes thirty years of age. If the income is less than Thirty-six Hundred ($3600.00) per year, I direct that payments be made from principal and interest so as to provide for my said wife an income of Three Hundred ($300.00) Dollars per month until my said son becomes twenty-five years of age, and an income of Two Hundred ($200.00) Dollars per month thereafter so long as she lives or until said principal is exhausted.
'(b) In the event of emergencies or severe sickness, said Trustees may make additional distributions to my said wife or son from principal if, in their sole discretion, such distributions are necessary, provided such additional distributions shall not exceed the aggregate sum of Five Thousand ($5000.00) Dollars.
'(c) If, in the sole discretion of my Trustees, additional funds are needed for the college education of my son, I authorize my Trustees to pay such expense from principal.
'(d) When my son, Timothy Gilbert Mann, becomes thirty years of age, this trust shall terminate as to him. At that time there shall be first retained in this trust assets of the then value of Thirty Thousand ($30,000.00) Dollars and one-half of the value of this trust in excess thereof shall be paid or delivered in kind to my said son. Thereafter, the entire income from said trust or not less than Two Hundred ($200.00) Dollars per month (from principal and interest) shall be paid to my said wife as long as she lives or until said fund has been exhausted.
'(e) Upon the death of my said wife this trust shall continue for the benefit of my son and if he has not attained the age of twenty-five years, my Trustees shall pay to him, or for his use and benefit, such amounts as may be needed in their sole discretion, for his maintenance and education, or they may pay to him all or any part of the income from this trust if, in their sole discretion, he shows an aptitude for management. At the age of twenty-five, my said son shall receive one-half of this trust, and, thereafter, he shall receive all of the income from the remaining trust. At the age of thirty, this trust shall terminate and my said son shall be paid all of the remaining principal.
'Fourth: I hereby nominate and appoint my said wife, Frances S. Mann, and D. Collins Lee, as Executors and Trustees under this my Last Will and Testament. As such they shall have full power and authority to sell and convey any and all of my real or personal property not specifically devised herein, at public or private sale and upon such terms as they deem advisable. They shall also have power to operate any business in which I am interested at the time of my death or to sell the same if, in their opinion, it should be sold. My said Trustees shall have full power and authority to invest and reinvest funds coming into their hands in such manner as they deem wise and prudent, and they shall not be liable for mistakes of judgment. Said Executors and Trustees shall serve without bond and if either, or both, of them should die ...