55 Ky. 309 | Ky. Ct. App. | 1855
delivered the opinion of the Court.
Clifton R. Ferguson, on the 28th day of September, 1847, made a will by which he devised “to Mary Baker Didlake and her children,” a tract of land in the county of Fayette. At the time of this devise, the devisee was unmarried, and without children. She has since married and has one child, and her husband, Carr, having sold the land to Estill,'and his wife being willing to unite with him in conveying the land, the question is presented whether Carr and wife can convey an absolute fee simple estate in the land to the purchaser.
It is stated in Powell on Devises, 494, as a rule ©f construction in England that where lands are devised to a person and his children, and he has no children at the time of the devise, the parent takes an estate tail. By our law an estate tail is converted into a fee simple; so that this rule of construction would give to Mary Baker Didlake an absolute fee in the land, and any children which she might thereafter have would be cut off, and could take no interest under the devise. This English rule of construction was adopted in order to effectuate the intention of the testator. For, as it is said, “the intent is manifest and certain that the children should take, and as immediate devisees they cannot take, because they are not in rerum natura, and by way of remainder they cannot take, for that was not his intent, for the gift is immediate, and therefore such words shall be taken as words of limitation.” Now, although, the words abstractly and literally import an immediate gift, not only to the devisee in esse but to his or her children also; yet if there be no children at the time, does it necessarily follow, as seems to have been supposed, that it was not the'testators intent thatthe children should take by way of remainder? We think not. But whatever may have been the legitimacy of such a conclusion in England, where in general more precision and particularity were observed in the creation of remainders than, in this
It necessarily results that as the children must take under the devise, if effect is given to the intent, and as it is impossible for them to do so in presentí, they must take in futuro. The reason of the English rule of construction failing in this state, the rule itself must fail, and the necessity is imposed upon us of resorting to a different rule of construction to carry out the intention of the testator. And the construction which we have given to the words of the devise is, as it appears to us, rational and natural. The mother, and also the children she might have, being objects of the testator’s bounty, and there being no children in esse at the time of the devise, who could take jointly with the mother according to the literal import of the devise, we conclude that the intent was to give the mother a life estate, and the remainder to the children.
Wherefore, the judgment is affirmed.