194 S.W.2d 175 | Ky. Ct. App. | 1946
Affirming.
This appeal involves the construction of certain provisions of the will of M.G. Bowles, deceased. The third provision of Mr. Bowles' will follows: "I devise to my brother, O.C. Bowles, Jr., all of the ground which I own upon which there are three houses, situated an North Hellier Street in the City of Pikeville, Pike County, Kentucky, to be his absolutely and in fee simple."
The fifth clause of the will, which is a general residuary *145 clause, follows: "The residue of my estate of every kind and character I devise to the three children of my deceased brother, C.C. Bowles, to-wit, Harrison C. Bowles, Lorraine Chrisman and Josephine Kirk, share and share alike, to be theirs absolutely and in fee simple."
Mr. O.C. Bowles, Jr., predeceased the testator, childless. It is the contention of the appellants that, since Mr. O.C. Bowles, Jr., predeceased the testator, the Hellier Street property passed to them under the fifth or residuary clause of the will. On the other hand, the appellees contend that the legacy lapsed, and that under KRS
KRS
Under the common-law rule the devise to Mr. O.C. Bowles, Jr., would have passed to the residuary devisees, but as early as 1852 that rule was changed in this jurisdiction and since that date the sense of the statute has remained as it stands today. It would serve no useful purpose to cite the many cases wherein this Court has strictly applied the statute where there appeared no intention other than that the lapsed devise should pass as in the case of intestacy.
As pointed out by the appellants, there is always the presumption against intestacy, and the presumption is stronger where the residue of an estate is disposed of. It is true also that one of the functions of a residuary clause is to dispose of such property as the testator may have forgotten or have been ignorant of its ownership. These rules would not warrant this Court, however, in nullifying the aforementioned statute. In the case at bar there was a clear-cut devise to one who predeceased the testator. Certainly that was a devise incapable of taking effect such as referred to in KRS
The appellants rely upon the recent cases of Signion *146
v. Moore's Adm'r,
Under the circumstances, we think the chancellor properly upheld the contention of the appellees, and the judgment is affirmed.