Campbell v. Mansfield

Smith, C. J., delivered the opinion of the court: T. J. Kirk, who died in 1803, disposed' of his property by will as follows: £ £ My individual land and all improvements thereon I give to my three children, and I want my brother, W. J. Kirk, to be their guardian, without bond, until they are twenty-one years of age. I want all the proceeds'of the farm paid to my children annually, but I do not want the land disturbed until they become of age. ’ ’’ He then bequeathed certain personal property to his wife, W. J. Kirk, and his three children, and proceeded as follows: ££W. J. Kirk to control my children’s interest in the personal property in the same way as the real estate. ’ ’ Upon the death of- the testator W. J. Kirk took charge of the property referred to in the will, managed and controlled it, and applied the income therefrom to the support of the testator’s children until a short, time before the institution of this suit, which was instituted against him-by these children for an accounting. Neither Kirk [547] nor anyone else qualified as guardian for these children,, nor did he obtain any order of the chancery court authorizing him to expend the income of this estate for their support and they now claim that he is not entitled to credit therefor. The mother of these children, who survived their father, afterwards married W. J. Kirk, and thereafter these children lived with them as a part of their family. While the attempt of the testator to appoint W. J. Kirk testamentary guardian of his children was ineffectual under our statute, by reason of the fact that their mother' was still living, nevertheless it is manifest that he intended that the property devised and bequeathed by him to these children should he managed and controlled by Kirk, and the income therefrom he applied by him to their support. W. J. Kirk, therefore, after the death of the; testator and until the children became twenty-one years-, of age, held the property as trustee under the will,, charged with the duty of dealing with it as therein provided. Black v. Leigh, Ambler, 305; Fullerton v. Jackson, 5 Johns. Ch. 278; Camp v. Pittman, 90 N. C. 615; Bush v. Bush, 2 Duv. (Ky.) 269; Vanartsdalen v. Vanartsdalen, 14 Pa. 384; Grimsley v. Grimsley, 79 Ga. 397, 5 S. E. 760; Kellogg v. Burdick, 187 N. Y. 355, 80 N. E. 208, 13 L. R. A. (N. S.) 288. This being true, it was unnecessary for him to obtain an order from the chancery court to apply the income to the support of these children. The court below committed no error in allowing him credit therefor.. We find no error in any of the matters complained of on the direct appeal. A dwelling house, situated on the land devised to these children, and insured for the sum of seven hundred dollars, burned several years before the institution of this suit. The money for which it was insured was collected by Kirk, and the income derived therefrom applied by him to the support of the children in the same manner that the income from the remainder of the property was. [548] The court below declined to allow him credit therefor, on the ground that no authority to apply it to the support of the children was conferred upon him by the will. In this the court was in error. The destruction of the house, and the collection of the money for which it was insured, simply resulted in transforming the real property into personalty, without fault on the part of Kirk, which personal property took the place of the real property, and became impressed with the same trust upon which the real estate had been held. Appellants are entitled on this item to recover only their portion of the principal of the seven hundred dollars, each one-third thereof. The decree of the court below is reversed; and since it appears therefrom that Kyle Kirk has in some manner, not apparent from the other part of the record, dropped out of this litigation, a decree will be entered here in favor of appellants Havercamp and Campbell in the sum of two hundred thirty-three dollars and thirty-three cents each with interest thereon at the rate of six per cent, per annum from the day each became twenty-one years of age. Reversed.