100 Ky. 212 | Ky. Ct. App. | 1896
eemvered tiie opinion of the court.
Elisha Warfield died leaving a last will and testament by which he made various devises to his children,
Mrs. Rogers died in November, 1891, leaving no child or children surviving her. Her will was admitted to probate and by its provisions having disposed of one-half the estate devised to her absolutely, by the second clause of the Avill she proceeded to deAdse the other half of the estate as follows: “The other half of the estate
Her sister, Caroline, having died before the testatrix she made a codicil to her will a,s follows: “As a third codicil to my will, I direct that the devise in the second clause To my sister, Caroline,’ now deceased, instead of to her, shall be to her son, L. P. Tarlton, and my niece, Kate Spears, equally, share and share alike.”
It will be seen that in the exercise of the power conferred upon Mrs. Rogers by the eleventh clause of her father’s will, she, by the provisions of her will gave two-thirds of the one-half, in which she had only a life estate, to her sister, Mary Jane, to pass to her four daughters, and the remaining third to L. P. Tarlton, a son of her sister, Caroline (who had died), and to her niece, Kate Spears, excluding the appellees, children of Elisha Warfield, or their children from any of the benefits of the devise made by the original testator, and under which the power was attempted to be executed.
The chancellor below held that the devise made by Mrs. Rogers, to her sister,. Mary, and to the grandchildren of the testator, was unauthorized by the will of her father passing no title to the devisees, and that all of the children living at the death of Elisha War-field or their children took the absolute estate under, the eleventh clause of his will.
It seems to be a well-recognized rule in equity that when the power is given to appoint or distribute among several, that each must have a substantial share, and this court in the recent case of Degman v. Degman 98 Ky., 717, held that where a power of appointment is given to be exercised, as to a class of persons, each one of the class is entitled to a substantial portion of the estate. In that case the devise was to the wife to be disposed of by her “among my children as she may think best.” The case of Kemp v. Kemp, reported in 5 Vesey’s Chancery reports is a very instructive and exhaustive review of all the cases on the subject.
The Master of the Rolls seems to have reviewed all the authorities upon this question resulting in the conclusion that the execution of the power was void and that all were entitled to equal portions. In that case the testator made the following devise: “What remains after paying these legacies I give to my cousin, Martha Kemp, for her life, and then to be disposed of among her
In this same clause of the will conferring the power the testator goes on to say: “I do not intend by placing their property (the daughters) in trust to abridge their control of it, but they may have the trustees changed and regulated as they may wish, etc.,” and from this it
It is further contended that the effect of the decision below is to pass the estate to the children as the law directs in case of intestacy, taking from Mrs. Rogers the right to dispose of the estate between the children as she might direct. If the exercise of the power is void, the estate must necessarily pass as if Mrs. Rogers had made no disposition of.it, and under the provisions of her father’s will it would pass to his children, or their children in equal parts, the children of those dying taking the share of their parents.
' We do not understand that perfect equality must exist in the distribution under such authority as was given in this case, but the rule is, that those entitled must receive at least a substantial benefit from the devise.
The fact of the testator having used the word direct in so many provisions of his will, as when he directs a division of lands, or an allotment between his children, or directs certain things to be done, manifests no intention on the part of the testator of his purpose to vest in either of his daughters the powerto disinherit any of his
The case in 5 Y'esey is referred to" in that case as settling the rule upon which the judgment below is based and we perceive no reason for departing from it.
Judgment affirmed.