138 Ky. 842 | Ky. Ct. App. | 1910
Opinion op the Court by
Affirming.
John A. Carter died in Jefferson county in the year 3894, the owner of a considerable estate. By his will which was duly admitted to probate after his death, he made certain specific bequests, and by the eleventh clause disposed of the remainder of the estate. That clause reads as follows: “All the rest and residue of my estate, real, personal and mixed, I give, devise and bequeath to the Fidelity Trust and Safety Vault Company in trust for the use and benefit of my beloved wife, Albana C. Carter, and my dear children Caroline S. Briggs and Anna Briggs Carter, in equal shares of one-third to each. In making this division, my wife is only to be charged with the ten thousand dollars hereinbefore given her, but my two children are to he charged with all advancements which I have made or may make to them and each of them is to be charged with the five thousand dollars hereinbefore given her. The said executor and trustee shall pay the net income semi-annually as follows, to wit: One-third to my wife,- one-third to my daughter, Carolina S. Briggs, and so much of the remaining third to my wife as testamentary guardian for my infant daughter Anna Briggs Carter, as she may demand for the support, maintenance and education of said Anna during her minority. So much of said income to Anna as shall not be demanded by my wife for her support, maintenance and education shall from time to time he capitalized and invested for her benefit by my executor and trustee, and when my daughter
At the time of his death, Carolina S. Briggs was about 41 years of age and had three children, all infants. His daughter, Anna Briggs Carter, was an infant and unmarried. The widow, Albana C. Carter, died in January, 1909. Carolina S. Briggs died soon thereafter,'leaving three children, all adults, two of them being married women. Anna Briggs Carter is now the wife of J'. A. Stewart, and has three children. Carolina S. Briggs had no children after her father’s death. This suit was brought by the three children who were living at her father’s death, and who survived her, to have the trust discharged and their part of the estate paid over to them. The circuit court adjudged them the relief sought/and the trustee appeals.
It will be observed that the third of the income is devised to the widow, and each of the daughters, and that the third devised to Carolina S. Briggs, is di
It is clear from the will that, at the death of either of the daughters leaving issue or descendants, the estate passed in fee to them. There is no attempt to limit the estate further. No one else has any interest in this part of the estate. It is also clear that, after the death of the testator, his daughter, Mrs. Briggs, might have borne other children; all Mrs. Stewart’s children have been born since. So that to continue the trust during the lives of all his grandchildren would be to continué it beyond a life or lives in being and 21 years and 10 months thereafter. Active duties are imposed upon the trustee; it is to manage and control the estate, and only the net income is devised to the original devisees, Mrs. Carter and her two daughters. But the language of the will is that, upon the death of either of the two daughters leaving descendants, the said descendants shall take her share of the estate in fee. The fee in-the property is thus devised to the descendants at the death of their mother. An absolute estate is thus vested in them in the property itself, and so much of the will as provides that the trust shall continue during their lives is inconsistent with the statute. The two daughters did not take a fee; they only took the net income during their lives, but, at the death of either of them leaving issue, her
Judgment affirmed.
