135 Ky. 70 | Ky. Ct. App. | 1909
Opinion of the court by
— Reversing.
Appellants, Ida Barnhill and others, who are the children and grandchildren of Mary Elizabeth Williamson, instituted this action against Henry Sharon
The petition is as follows: “The plaintiffs state: That one Thos. Sharon, on the-day of 190 — ■' departed this life testate, a resident and citizen of Scott county, Ky., having first made and published his last will in writing, a certified copy of which is filed herewith marked “W.” and which was duly probated and admitted to record in the clerk’s office of said county. At the time of his death he was the owner of a tract of land in said county of about 47 acres bounded and described as follows: Adjoining the land of Henry Sharon on the west, Hugh Sharon and Annie Morris on the south, Jas. N. Sharon on the ■east, and Patsy Williamson on the north. That by the said will said testator devised said land to Mary Sharon, his wife, for life, remainder to his brothers and sisters. That on the - day of January, 1909, his wife, the said Mary Sharon, the said life tenant, departed this life. That the four defendants who survive are the only brothers he ever had. That said testator had one sister, who died before the testator died, without issue or parents, and a half-sister, whose name was Mary Elizabeth Williamson, who died before the said will was made and left surviving her the three children, a daughter, Ida Barnhill, the plaintiff, and the plaintiff Arthur Barnhill is her husband, Rosa Ann Barnhill, who married the plaintiff Jno. E. Barnhill and died, leaving as her only children the plaintiffs Ethel, Mary, and Ward Barn-hill and another daughter, Artymacy Barnhill, now dead, who married plaintiff, Joe Sutton, and
The will of Thomas Sharon, referred to in the petition, is as follows:
“May 17, 1897.
“I, 'Thomas J. Sharon, of the county of Scott and state of Kentucky, do this day make and publish this my last wilj and testament:
“(1) I give and bequeath to my wife, Mary A. Sharon, all my estate, both real and personal, to have and to hold the same during her lifetime.
“ (2) And the real estate to go to my brothers and sisters, at the death of my wife.
“ (3) I do hereby appoint and make my wife, Mary A. Sharon, my sole executrix without giving any bond.
“ (4) I further order my executrix to pay my just and honest debts, and funeral expenses.
“In testimony whereof I have this day set my hand in the presence of
“Thomas J. Sharon. “Witnesses: John Morris,
“John F. Cox,
“W. O. Barnhíll.”
“Sec. 2064. When a devise is made to several as a class or as tenants in common, or as joint tenants, and one or more of the devisees shall die before the testator, and another or others shall survive the testator, the share or shares of such as so die shall go to his or their descendants, if any; if none, to the surviving devisees, unless a different disposition is made by the devisor. A devise to children embraces grandchildren when there are no children, anijl no other construction will give effect to the devise.”
“Sec. 4841. If a devisee or legatee dies before the testator, or is dead at the making of the will, leaving issue who survive the testator such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unlss a different disposition thereof is made or required by the will.”
“The court then uses the following language: “These statutes, however, cannot aid us until we first
Prom an examination of the will and facts of the above case, it will be seen that the question involved in the case at bar is substantially the same. In the will under consideration the testator uses the words “brothers and sisters.” In order to give the word
Judgment reversed and cause remanded, with directions to overrule the demurrer to the petition.