99 Ky. 273 | Ky. Ct. App. | 1896
delivered the oeikton oe the court.
Mrs. Elizabeth M. Bedford died in Lewis county in the -month of February, 1860, leaving a son, Robert Bedford, who was then thirty-two years old. She made a will a short time before she died, which was duly probated, -and which contains the following devises:
“1st. I give and bequeath to my son, Robert Bedford, all of my lands in Lewis county, to have and to hold during his natural life. ... If said Robert Bedford should die*278 leaving a child or children of his own body, then those lands are to go to those children and their heirs forever.
“2d. I give and bequeath to nay son, Robert Bedford, all the lands and other property I own in the county of Nicholas, to have and to hold during his natural life. . . .
“4th. In case my son Robert dies leaving children of his own natural body, I give and bequeath all my lands to them and their heirs forever. But if my son dies without a child or children, then I desire that all my lands in Lewis and Nicholas be sold, and the money arising from said sales I give and bequeath to the State of Kentucky forever in trust, that the said State will forever hold the same for the use and benefit of the children of the State; that the said State will invest said money in some profitable bank stock, and the profits therefrom I desire to be appropriated annually forever towards the education of the children of the State of Kentucky, particularly the poor and most unintelligent. I desire that this money constitute a permanent school fund, and the interest from this fund be appropriated annually towards the education of the children of .this State.”
The testatrix owned at the time of her death a tract of 343 acres of land in Lewis county, which she pui*chased in the year 1830. She owned or claimed to own also a tract of 200 acres, and one of 300 acres, boitih in Nicholas county, and an undivided interest of one-fifth in a tract of about 460 acres, situated in Nicholas and Robertson counties, under the will of her father, George M. Bedinger, deceased, who died domiciled in Nicholas county, and whose will was probated and recorded in that county. The question whether she owned and had the right to dispose of the lands claimed under her father’s will must be determined by the meaning of several clauses of his will, which will be referred to.
The death of George M. Bedinger occurred in the year 1843. He left a widow, Henrietta; four sons, Henry C., Daniel P., Benjamin F. and Joseph Bedinger; and one daughter, the said Elizabeth M. Bedford. By his will, after making numerous specific devises, including a liberal provision for the comfort of his widow, he left the residue of his property to his said sons and daughter. The body of his will was written in 1838, to which were added two codicils, the first bearing date 11th day of July, 1842, and the second the 28th day of May, 1843.
In the body of his will he devised to his daughter a tract óf 200 acres of land, using the following language: “To my daughter, Elizabeth M. Bedford, I give and bequeath 200 acres of land lying on the east side of the Maysville turnpike-road. . . . The property bequeathed to my daughter, Elizabeth M. Bedford, to go to her child or children at her death or, if she and her son Robert die loithout children, the estate to revert to her four brothers now living, their heirs or assigns forever.”
The residuary clause of hds will is as follows: “The residue of my estate, of every description, with all reversions, 1 will and bequeath to my five living children equally and should any of them die toithout issue before they have disposed of their interest in any realty thus devised, their portion to the others living or having issue, their heirs or assigns forever.”
In the first codicil of his will he made the following provision : “My further will and desire is that my beloved wife,
Finally, in the second codicil to his will, which was written a short time before he died, he uséd the following language; “First, . . . instead of the various devises contained in the preceding will, I will to my wife one equal third part of all my property, both real, personal and mixed, during her natural life, and after my death my will and desire is that the same be equally divided between my five children now living, to-wit, Henry C., Daniel P., Benjamin F. and Joseph Bedinger and Elizabeth M. Bedford, their heirs and assigns forever; . . . sixth, it is my will and desire that in case of the death of my daughter, Elizabeth, before her son shall have arrived at the years of maturity, and, sh'ould'her son die without issue, that the property bequeathed shall revert and be merged in the estate.”
This srdt was brought by Thos. S. Clark, administrator de bonis non, with the will annexed, of Elizabeth M. Bedford, deceased, to sell said lands and have the proceeds paid to the State of Kentucky in accordance with the terms of her will. There is no controversy about Mrs. Bedford’s owner
On the other hand it is claimed for the other appellants, the heirs of the four brothers of Mrs. Elizabeth M. Bedford, .all of who-m are d-e-ad, that under the will of George M. Bedinger, deceased, Mrs. Bedford had only a life interest in the Nicholas county lands devised to her, and that the «aid Eo-bert Bedford having died without issue the said lands reverted at his death and vested in the four sons of the said George M. Bedinger, who are named in his will, or, their heirs, while the appellee, Garrett S. Wall, who had,I prior to the commencement of the action, been appointed by the superintendent of public instruction, in pursuance of the provisions of the General Statutes (section 4397 of the Kentucky Statutes), agent for the State to collect and take ■charge of the money, claims that under the will of Elizabeth M. Bedford, the State- is entitled to receive as trustee the
On the final hearing of the canse, the court below in substance adjudged that Mrs. Bedford owned all of the lands above mentioned in fee simple, and that they passed under and in pursuance of her last will, except the 200-acre tract in Nicholas county, in which it was adjudged she had only a life estate, and which, therefore, did not pass under her will.
The court accordingly adjudged that the 200-acre tract belonged in proper proportions to the heirs of the four brothers of Mrs. Bedford: Joseph Bedinger, one of the four brothers, being a defendant, but having died after the judgment was rendered, his heirs were by proper proceedings made parties to the appeal in this court, and the judgment which we have recited is before' us for review.
Although proper exceptions were taken in behalf of the State or its agent with regard to so much of the said judgement as established the claim of Joseph Bedinger and others to the 200-acre tract of land, the State or its agent is no longer concerned in that question as the case now stands, because no appeal was prayed or is now prosecuted from the judgment in behalf of the agent of the State. But the question as to the correctness of that part of the judgment is before us on the appeal of Susan M. Bedford, and its solution depends upon the meaning that is to be given to the clause of the will of George M. Bedinger, by which this tract of land was devised to Elizabeth M. Bedford, which we have quoted. This question we will notice first.
■It is contended that since both Mrs. Bediurd and her son Eobert died without child or children surviving them, the title to the land vested at the death of the said Eobert in the said Joseph Bedinger and the heirs of Mrs. Bedford’s other three brothers, all of whom were then dead. But this contention can not be sustained. In construing testamentary provisions of this kind it is sometimes quite difficult to determine to what period the words “dying without children,” or words of similar import, refer. And often precedents are of little avail to aid in reaching a correct interpretation of such provisions on account of the great variety of forms of expression in wills, and of the different meanings that are attached to technical words and sentences by different testators.
On this subject, Mr. Justice Miller, in Clarke v. Boorman, 18 Wall., 493, said: “No two wills, probably, were ever written imprecisely the same language throughout, nor do
These considerations illustrate the necessity of limitingthe ordinary rules of testamentary construction in their application and of subordinating them to the cardinal rule,’ which is of universal application, that the intention of the testator, as gathered from his entire will, must prevail if not opposed to some positive provision of the law or to some general principle of public policy. (Schouler on Wills, sections 462, 464, 466, 468.)
Applying this cardinal rule of construction and gathering from the other provisions of the will of George M. Bedinger, with regard to these specific devises of land to his children that it was his intention that the living beneficiaries should be eventually the absolute owners of the portions devised to them respectively, it is our opinion that he intended that the portion devised to his daughter and her son should revert to his other children only in the event both of them died without children previous to his death.
Upon this construction, which we think is a rational one, and in exact accord with the intention of the testator thus ascertained, both Mrs. Bedford and her son Robert having survived the testator, the former was left with a life estate in the land, with remainder in fee to the’ latter, which was subject only to the possibility of being divided upon the death of Mrs. Bedford, leaving other children surviving her. It follows that at the death of Mrs. Bedford the said Robert, bein - her only child, became vested with the absolute title
In the body of his will, George M. Bedinger left to his wife, Henrietta, a farm of 300 acres, called his “mill farm,” for life, besides a small farm of about 80 acres, also for life, it being the farm on which he lived, some negro slaves and all of his household and kitchen furniture and provisions.
It will be observed, by reference to the residuary clause of his will, which we have quotéd, that taking out what he had left to his wife and the specific devises and bequests he had made to his five children, and some of his grandchildren named in the will, he left all the residue of his estate of every description to his “five living children.” This clause contains the provision that should any of his five children “die without issue before they have disposed of their interest in any realty thus devised their portion (shall pass) to the others living or having issue.”
It is ably contended by counsel for the appellees, and there is strong authority to support the contention that the language quoted vested his children with the unlimited right to dispose of the property left them respectively, and that, therefore, each of them was thereby vested with a fee simple title to the property received under this clause. We are inclined to the opinion that this, is the legal effect of the language used when taken in connection with the words, “their heirs or assigns forever,” which occur at the end of the clause quoted from. But it is not necessary for our purpose now to decide that point. We have quoted this
Coming now to the first codicil, which was executed on the 11th day of July, 1842, by that addition to his will he provided that his wife should have for life all of his land that had not been specifically devised to his children, in addition to what had been left to her in the body of his will, and provided further that at her death all of the property left to his wife during her life «hould be divided into five equal parts — “four parts to go to my sons, Henry C., Daniel P., Benjamin F. and Joseph Bedinger, and their heirs forever, and the other fifth bequeath to my daughter, Elizabeth Bedford.”
It is contended by counsel for appellants that the provision last quoted did not vest Mrs. Bedford with a fee in the property to which she was entitled under the first codicil, but we are of the opinion that it was intended by the testator that all of his children named in the codicil should have the absolute title to the property they were respectively entitled to thereunder, and that the use of the words- “and their heirs forever,” after the gift to his sons, and the failure to use the same words after the gift to his daughter, did not evince an intention on liis part that the daughter ■should be vested with a less interest in her share than his sons would have in their respective shares; but much stress
But while it is unnecessary to decide that question here, owing to the peculiar wording of the whole clause, it would not, in our opinion, be an unreasonable construction of the part of it last quoted to refer the words “die without issue” to the death of any of the testator’s children or grandchildren before the death of the testator, as we have done in construing the clause by which the tract of 200 acres of land was devised to Mrs. Bedford; but whether this would be a fair construction or not it is quite evident that the first codicil was not intended to operate upon the specific devises made to the children of the testator in the body of liis will because the land devised to- them was expressly excepted from the devise therein made to his wife of all his land “not specifically willed to my children.”
If, however, the clause now under consideration ought to receive the construction contended for by counsel for the appellants, so far as thus construed, it would affect the title to. the property devised to Mrs. Bedford, its operation is defeated by the second codicil, which will be. next considered.
The second codicil bears date 28th day of May, 1843, not long before the death of George M. Bedinger. He was led to add this codicil to his will by the fact that he had leased for a term of years his residence and adjoining property, a part of which had been devised to his wife, which made it
In other items of this codicil he referred to some of the specific devises that he had made, from which we conclude that he did not intend that any of them should be changed in any way by the first item of this codicil above quoted; and it is a familiar principle that where the terms of a will clearly give an estate, the words of a codicil must manifest an equally clear intent to revoke or change it before they will be allowed to have such an effect. (Sturgis v. Work, 122 Ind., 134, 17 Am. St. Rep., 349.)
Finally, in the sixth item of this codicil, he provided that in case of the death of Mrs. Bedford, “before her son shall have arrived at the years of maturity, and should her son die without issue,” then the property “bequeathed” to her should “revert and be merged in the estate.” This is clearly a double contingency, upon the happening of which the reversion of the property devised to Mrs. Bedford under this codicil was made to depend, and the general rule is that when an estate depends upon a double contingency both must concur. (Phelps v. Bates, 54 Conn., 11; 1 Am. St. Rep., 92.)
We have seen that in this, codicil the property was devised to Mrs. Bedford and her four brothers in fe.e simple, but the portion devised to Mrs. Bedford was made subject to rever
We think the second contingency, as we have stated it, is the proper construction, but we do not regard it as material because the effect of the failure of either event upon which the reversion depended to happen was to prevent the reversion— that is, the death of Mrs. Bedford during the minority of her son, and Ms death without issue either during his minority or after he attained his majority — so that when the son reached his majority, his mother surviving, every condition or contingency was removed from her title to the property, and she at once became the absolute owner of it with full power to dispose of it in any way she might choose to do.
It follows that Mrs. Elizabeth M. Bedford had the right to dispose of all her land by will except the tract of 200 acres, in which, as we have seen, she had only a life estate, and that the devise of it, after the death of her son, to the State of Kentucky in trust is valid unless it is so indefinite and uncertain as to the object and the beneficiaries of the trust as to render it impossible to execute the trust. And this we are now to determine.
The clause of Mrs. Bedford’s will by which the lands that she owned in Lewis and Nicholas counties, and which she had the right to dispose of, were devised to the State of Kentucky in trust, has been quoted. After the termination of her son Robert Bedford’s life estate in these lands which was devised to him, and upon his death, without child or children, she required the lands to be sold, and bequeathed the proceeds of the sales to the State of Kentucky “forever in trust,” and to be held by the State forever “for the use
It is contended that this disposition of her property was invalid because of. indefiniteness, and that the property descended to her son, Robert Bedford, and passed to his wife, appellant, Susan M. Bedford, under his will. The allegation is that the foregoing* devise “is so uncertain, indefinite and ambiguous as to its purpose and beneficiary objects as to render it insusceptible of execution or enforcement, and is, therefore, ineffective and inoperative, and should be held for naught.”
Counsel for appellants have wholly failed to sustain their contention as to the indefiniteness and the consequent invalidity of this bequest of the proceeds of the sales of the lands of Mrs. Bedford. It is definite, as has been fully sustained in the arguments of counsel for the agent of the •State, first, as to the trustee; second, as to the beneficiaries; and, third, a« to the object and purpose of the trust.
It is not contended that the State may not be a trustee of a charity, nor that education is not a proper purpose for which charitable uses may be created; but it is contended that the beneficiaries are so indefinitely described that they can not be identified-. Indefiniteness in the latter particular characterizes all charitable trusts to a greater or less degree, and it is said to be the one thing that distinguishes .such a trust fróm a mere private trust. (2 Pomeroy’s
In the latter case the court said that charitable trusts “may, and indeed must be, for the benefit of an indefinite number of persons, for if all the beneficiaries are personally designated the trust lacks the essential element of indefiniteness which is one characteristic of a legal charity.”
In numerous cases trusts of this kind have been sustained by this court which it is not necessary to review. (Moore’s heirs v. Moore’s devisees, &c., 4 Dana, 354; Curling v. Curling, 8 Dana, 38; Attorney General v. Wallace, 7 B. Mon., 611, Cromie’s heirs v. Louisville Orphans’ Home Society, 3 Bush, 365; Peynado v. Peynado, 82 Ky., 5; Leads v. Shaw’s adm’r, Ib., 79.)
In the Peynado case the beneficiaries of the trust were to be “as many little orphan children (males) from respectable families as can possibly be taken” into an orphan asylum and school that was provided for, and the trust was held to be valid.
In the case of Leeds v. Shaw a bequest was made of the income of certain stocks, which was directed “to be paid over every year to the trustees of the Lagrange School. District, and by them expended in the education of poor children, or towards the maintenance of a good common school in said district, etc.,” and this was -held not to be void for uncertainty. And so we hold that the bequest in this case is sufficiently definite in every particular, and that it is valid.
For the reasons given so much of the judgment of the court below as adjudged that the tract of two hundred acres of land in Nicholas county that was devised to Elizabeth M. Bedford specifically by the will of George M. Bedinger, deceased, belonged to Joseph M. Bedinger and others is reversed and the cause remanded, with directions to enter a
