140 Ky. 160 | Ky. Ct. App. | 1910
Affirming.
Shandy A. Holland died in the year 1872, a resident of Christian county, Kentucky. He left a will which was duly probated in the Christian county court and is as follows: , ■ • .
' ‘ The last will and testament of Shandy A. Holland, of Christian county and State of Kentucky. Being of sound mind and disposing memory do make the following disposition of my estate:
“1st. I will that all my just debts be paid.
“2d. I will to my beloved wife, Almeda, three hundred and fifty acres of.land embracing the dwelling in which we now live, begining on my northwest corner and running with my line south till it reaches a line running then the lane by the dwelling house, running east far enough to embrace the number of acres above mentioned and thence with that line west to the beginning, to have and to hold the same for a home for herself and our unmarried daughter during her life and at her death to belong to our youngest daughter, Mary Elizabeth.
“3d. I will that the remaining part of this tract of land be equally divided between our three daughters, namely, Francis A. Bradshaw, Sarah A. and Almeda W. Holland, , and if it cannot be equal in value then amount of difference is to be made up in money.
“4th. I will that my interest in the Lundram & Majors tracts of land be sold to the highest bidder whenever my executrix hereinafter mentioned thinks best to do so, requiring one-fourth of the purchase money in hand and the balance on whatever time she may think best, requiring personal security and retain a lien on the land until all the purchase money be paid, the tract of land in the State of Missouri to be sold in like manner as above stated of my Kentucky lands.
“5th. I will that my wife Almeda take possession of my entire estate not otherwise disposed of and to sell such at public auction as she may think best for the estate. ■ • -
“6th. I will that out of the moneys and stocks in hand that there be given to each one of the above-named children the sum of five thousand dollars, the sums that have been advanced included, the remainder of my moneys and bank stocks and county bonds be retained in the hands of my wife Almeda so long as she may desire
“7th. I will that in case that either of my daughters die leaving no living heir of their body, that the property received by them from my estate and that of their mother’s be given to those or their living children to have and to hold during life.
“8th. I will and appoint my beloved wife, Almeda, my executrix to carry out this my last will and testament.
‘£ 9th. I will that the court take her without requiring of her any personal security, as I have full confidence in her ability to attend to it.
“10th. 1 will that if my wife wants any assistance, to aid her in attending to the business, she can make her own selection of the person to assist her, but no signature will be binding in connection with this business but her own.
“S. A. Holland.”
The testator left surviving him a widow, Almeda Holland, and four children, to-wit: Francis A. Bradshaw, who is now dead, Sarah A. Holland, now Sarah A. Forbes, Almeda W. Holland, now Almeda W. Garnett, and appellee, Mary Elizabeth Williams. The testator’s widow died many years ago, without having remarried. Upon her death, all of the estate not theretofore divided, was divided equally between the testator’s four daughters.
On October 1st, 1883, Sarah A. Forbes and her husband, W. A. Forbes, sold and conveyed by proper deed to Joseph H. Williams, husband of Mary Elizabeth Williams, 155 1-2 acres of land which had been allotted to Sarah A. Forbes. Joseph H. Williams died in the year 1902, leaving a last will and testament which was duly probated and by which he devised the whole of his estáte, including the 155 1-2 acres, to his wife, Mary Elizabeth Williams.
For the appellants it is insisted that the daughters of Shandy A Holland took only a defeasible feé in the property devised by him, which was subject to be defeated by their death at any time without heirs of their bodies. It is perfectly plain from the language of the will that the.testator, in using the words “in case either of my daughters die leaving no living- heirs of their body,” had no reference to the death of any one of them during his life time. Thát phase of the question may, therefore, be eliminated from the case.
The sole question left for determination, then, is: Did the testator mean an indefinite failure of issue (that is, the failure of issue whenever it might occur), or a failure of issue before the period fixed ¡for distribution?
While the purpose of construing a will is to arrive at the intention of the testator, yet, in seeking the intention of the testator we must construe the language of the will in the light of the uniform rules of interpretation adopted by this court. Among the rules so adopted is one to the effect that where an estate is devised to one for life, with remainder to another, with the further provision that, if the remainderman should die without children
Bearing these rules of construction in mind, let us examine the language of the will. The testator first gives to his wife, Almeda Holland, the 350 acres of land in controversy for and during her life, with remainder to his daughter, Mary Elizabeth. The death of Mary Elizabeth without heirs of her body may, therefore, be referred to her death before that of her mother, to whom ■ was devised the' particular estate. Following the above devise and after providing a farm for each of his daughters, the testator intrusts’ the whole of his estate, both reai and personal, to his widow, with power to sell the land not devised. She was directed to distribute $5000.00 'to each of his four, daughters and was authorized to pay them, as much moye as she chose, provided all were made equal in the distribution. All the remainder of Ms estate was to be held by his widow so long as she desired, or so long as she remained his widow. In the event of her second marriage, one-third of the estate was to be laid off' to her for her .benefit during life. At her death there was to 'be.a final distribution of all his estate among his daughters. Here, then, we have a period of distribution to which the death of the testator’s children without heirs' of their bodies may be reasonably referred. It is insisted, however-, by appellants that the language of the testator plainly discloses a contrary intention, for, in clause 7, he refers to property received by them “from my estate and that of their mother’s,” and, as
Upon careful consideration, we see nothing -in the will which would justify us in holding that the testator meant that the estates of his children should.be defeated by an indefinite failure of issue rather than by their death before the period fixed for distribution. When, therefore, appellee, Mary Elizabeth Williams, and Sarah A. Forbes survived their mother, and the testator’s entire estate was distributed, they became seized with an indefeasible fee to their respective shares. That being true, it follows that the judgment of the chancellor is proper and should be affirmed, and it is so ordered.