Becker v. Roth
115 S.W. 761
Ky. Ct. App.
1909
Check Treatment

Opinion op the Court by

Judge Barker

Reversing.

Chаrles Roth. died, in 1895, leaving a last will and testament, which was duly probated by the Kenton county court. At his death he ow)ned a tract оf land in Kenton comity, which he devised to his wife, Susanna Roth. The question before us on this record is the estate which his wife took under his will. - This involves a construction of two items, which are as follows:

“Item 1. I give, devise and bequeath unto my beloved wife, Susanna Roth, аll my property, both real and personal, which I now own or may hereafter acquire and die possessed of, subjeсt to the payment of my just debts and funeral expenses, to hold and dispose of the same as her own separate estate.
“Item 2. In case my said wife should die or marry again, before the said property above devised is disposed of, it is my will thаt one-half of ‍‌‌​‌‌​‌‌​​​​​‌‌​‌​‌​‌​​​‌​​​‌‌‌​​‌​‌​‌​​​‌​‌​​​​‍the same go to my legal heirs, and one-half of the same to the legal heirs of my said wife living at the time of hеr said death or marriage.”

It isi contended by appellant that by item 1 the testator devised his property in fee to his wife, and that item 2, in so far as it undertook to devise over any property undisposed of by the wife at the time *432of her subsequent marriage or death, is void. On the part of appellees, it is insisted that, taking the two items together, the wife took a defeasible fee in one-half of the property undisposed of at the time of her marriage or death, and with absolute fee in the other half. The circuit court, adopted the construction of appellees, and so adjudged. This appeal challenges the correctness of that judgment.

It is obvious that by item 1 the feei-simple estate in the property owned by thе testator at his death was given to his wife with unlimited power to hold and dispose of it as her separate ‍‌‌​‌‌​‌‌​​​​​‌‌​‌​‌​‌​​​‌​​​‌‌‌​​‌​‌​‌​​​‌​‌​​​​‍estate. This, we think, invеsted the wife with an estate which could not be divested by any subsequent provisions of the will. In the case of Clay and Others v. Chenault, 108 Ky. 77, 55 S. W. 729, the testator devised 275 acres of land in equal shares to his two sons, giving them the absolute and unlimited power of sale without any рrovision for reinvestment. This was held to convey the fee-simple title to the sons, and a subsequent limitation over, conditioned upon their dying without issue, was void. The court said': “It seems to us that the decided weight of authority, if, indeed, there be any to the cоntrary, is to the effect that a will' or deed, giving to the vendee or devisee full power to sell and convey, passes the absolute fee, and that any provision or devise over is absolutely void for the reason that it is inconsistent with or repugnаnt to the fee, and that it is wholly immaterial whether the power to sell or dispose of the property shall have been exercised or not. This view is not at all in conflict with the law which allows a power of appointment to be vested in one who merely owns a life estate in the property.” In the case of Irvin v. Putnam (Ky.) 89 S. W. 581, the court said: “The rule is that where an estate is given *433in fee, and there is a devise over if it is not disposed of, the devise over is void. Where a life estate only is ‍‌‌​‌‌​‌‌​​​​​‌‌​‌​‌​‌​​​‌​​​‌‌‌​​‌​‌​‌​​​‌​‌​​​​‍devisеd, with power of disposition, and there is a devise over, the rule is different.” In Dulaney v. Dulaney, 79 S. W. 195, 25 Ky. Law Rep. 1662, it was said on the subject in hand: “This court has in a number of eases held that an attempted limitation made upon a fee — that is, a devise over of what may not have been disposed of by the first taker — is void as being incompatible with the fee.” In Barth v. Barth, 38 S. W. 511, 18 Ky. Law Rep. 840, the second item of the will was as follows: “I devise and bequeath to my wife, Sarah Ann Barth, all my property, real and personal, and choses in action of еvery description of which I may be the owner or to which I may be entitled to at the time of my decease; also any аnd all insurance on my life absolutely and forever, with power to sell or dispose of as she deems proper, and аll the property of whatever kind and description which remains at her death to be equally divided among my three sons. * * *” It was there held that the widow took a fee-simple estate, and the devise over to the sons of whatever property remained undisposed of at her death was void as being repugnant to the fee. In Moore v. Webb, 2 B. Mon. 282, it was said that “The unqualified right of disрosition given to the widow during her life, as wiell as at her death, imports, in our judgment, a devise of the ‍‌‌​‌‌​‌‌​​​​​‌‌​‌​‌​‌​​​‌​​​‌‌‌​​‌​‌​‌​​​‌​‌​​​​‍absolute title to her in fee, and not merely a life estate with a power of appointment at her death. * # *” To the same effect are Pedigо’s Ex’x v. Botts, 89 S. W. 164, 28 Ky. Law Rep. 196; McCullough’s Adm’r v. Anderson, 90 Ky. 126, 13 S. W. 353, 7 L. R. A. 836; Dills v. Adams, 43 S. W. 680, 19 Ky. Law Rep. 1169; 4 Kent, Com. *535-536; Howard v. Carusi, 109 U. S. 725, 3 *434Sup. Ct. 575, 27 L. Ed. 1089; Page on Wills, section 572; Redfield on Wills, 279; Moran v. Moran, 143 Mich. 322, 106 N. W. 206, 5 L. R. A. (N. S.) 323, 114 Am. St. Rep. 648; Moody v. Walker, 3 Ark. 187; Law v. Douglass, 107 Iowa, 608, 78 N. W. 212; Van Horn v. Campbell, 100 N. Y. 287, 3 N. E. 316, 771, 53 Am. Rep. 166.

The cases cited by counsel for appellees as establishing a different rule are not apposite to the case at bar. In all of them the devisee took a life estatе with power of disposition, and in this class of cases it has uniformly been held that a devise over of the undisposed of estate is valid. In the case at bar the testator by item 1 of his will devised' to his wife the fee-simple estate. The limitation over of such part of the devised property as should remain undisposed of upon the contingency of the wife’s subsequent marriage, or at her death, was void as being repugnant to the fee. When a testator devises all the estate he has in proрerty, which is a fee-simple title, there is nothing left for him to devise over. Some time after the death of her husband, Charles Roth, Susanna Roth, his widow, intermarried with Herman Becker, to whom she conveyed a part of the property. This action was insituted by thе heirs at law of the husband to recover one-half of the estate. The chancellor held that they were entitled to one-half of it, and set aside the conveyance to Herman Becker by Susanna Becker. We need not set out the details of the litigation further.

The conclusion we have reached renders it necessary that both appeals should be reversed, with directions to set aside the judgments against Susanna Becker and ‍‌‌​‌‌​‌‌​​​​​‌‌​‌​‌​‌​​​‌​​​‌‌‌​​‌​‌​‌​​​‌​‌​​​​‍Herman Becker and dismiss the petition, and for such other orders with reference to the judicial sale of the property as may be necessary to restore the *435appellants to all their rights in the property, and it is so ordered.

Petition for rehearing by appellee overruled.