135 Ky. 650 | Ky. Ct. App. | 1909
Opinion op the Court by
Reversing.
This appeal involves a construction of the will of John Johnson, Sr., who died in Nelson county in May, 1891. The will is in words and figures as follows :
“I, John Johnson, Sr., of the county of Nelson and State of Kentucky, do make and publish this my last will and testament hereby revoking any former will which I may have heretofore made:
“ (1) I desire my just debts and funeral expenses paid.
‘ ‘ (2) I devise to the- children of my dead daughter, Mary Hart, to be equally divided among them, their -farm above Bardstown on which their father now resides; and in the distribution of my estate I value said farm at -twelve thousand dollars. I make no charge whatever against them for rent or-for use of said farm, nor for taxes which I have paid on it. In fact I want this valuation of the farm to cover all advancements to them and their mother. I also give them three thousand dollars.
“ (3) I devise to my son John, all of my real estate south of the Beechfork and in the settlement of my estate I value said land at fifteen thousand dollars, and this valuation is to cover any and all advancements made to him, whether in the way of use of the place, taxes thereon, or otherwise.
í£(4) I devise to my daughter, Cassie, my home place, containing about 600 or 700 acres to be hers as
• “ (5) I devise to my daughter, Nannie Cook, $15,- • 000.
“(6) I devise to.my son, John, in trust for my daughter Bettie, ten (10) $10,000.00 Logan county bonds, the net income to be paid her every six months, as long as she lives, and at her death the principal to be divided among my heirs in accordance to the number of children which each may then have; said division to be ‘per stirpes.’ I also give to my daughter, Bettie, the right to occupy a room in the house which I hereby devise to Cassie as long as she (Bettie) may live or remain unmarried.
“(7) I give to Octavia Barnes $400.00, provided she stays with and helps Cassie with her housework for four years after my death.
“(8) The real estate which I devise to my son, >J olm, is to be his only during his life and at his death to go to his children.
'“(9) I also give my son, John, the stock in the Louisville & Nashville Railroad Company.
“(10) I hereby constitute and appoint my son, John, the executor of this will and ask the court to allow him to qualify without giving security. As executor he is to have no commissions in any part of my estate, except upon that part used in paying my debts and funeral expenses and costs of administration, and that disposed of under the twelfth clause of this will. I appoint my friend, Ben Johnson, as the legal adviser of my executor.
“(12) All of the remainder of my estate I want equally divided among John Johnson, Nannie Cook end Cassie Barnes, and the children of Mary Hart. The Hart children to have one-fourth, and John, Cassie and Nannie, each to have one-fourth. Bettie is to have no more of my estate than the income from the Logan county bonds and a comfortable room in my house as hereinbefore set out.”
At the time of his death the testator owned real and personal estate amounting in value to $120,000. Four of his children were then living, viz., John Johnson, Jr., Nannie Cook, Cassie Barnes, and Bettie Johnson, the last an unmarried daughter. Another daughter, Mary Hart, died before the testator, leaving surviving her three children, Clarence Hart, Al. J. Hart, and' John Hart, all adults. It will be observed that the will of the testator, with the exception of $10,000 in Logan county bonds bequeathed by the sixth clause to his daughter Bettie Johnson, devised all the residue of his estate to his three other children and the sons of his deceased daughter, Mary Hart, one-fourth to each of the children, and one-fourth to the three sons of Mrs. Hart jointly. It will further be observed that the $10,000 in Logan county bonds disposed of by the sixth clause of the will were bequeathed by that clause to John Johnson, Jr., in trust for Bettie Johnson; the net income thereof to be paid the cestui que trust every six months “as long as she lives and at her death the principal to be divided among my heirs in accordance to the number of children which each may then have; said division to be per stirpes.”
The language of the sixth clause of the will very clearly shows it was the intention of the testator that the remainder in the trust fund, the income of which his daughter Bettie had enjoyed until her death, should be distributed to certain persons in proportion to the number of children each might have at the time of Bettie’s death. The difficulty is as to the identity of the beneficiaries. It is urged in behalf of appellees that the word “heirs” is a technical term meaning the persons to whom the estate would go in case of intestacy, which it is claimed would include them with the children of the testator, and therefore entitle them to take, as to this fund, under the sixth clause of the will as do the testator’s own children; that is, in proportion to the number of children each has. While the word “heirs” is generally given the meaning attributed to it by appellees in this case, it its sometimes used in the sense of children. In construing a will the matter of first importance is to arrive at the intention of the testator, and, when ascertained, the iutention must be carried into effect; even though the technical meaning of the words must be disregarded in order to do so. In deed, as held by this court in Edmonds' Ex’r v. Edmonds’ Devisees, 102 S. W., 311, 31 Ky. Law Rep., 396, courts will sometimes supply words to carry into effect the manifest purpose of the testator.
Does the testator, in disposing of the $10,000 fund by the sixth clause of the will, direct such a distribution of it as manifested any change of his purpose with respect to the sons of Mrs. Hart, as clearly manifested in all other parts of the will? We think not. It is true the sixth clause introduced a new method of distribution as to the $10,000 fund, viz, that it should be distributed to his children, according to the num
Wherefore the judgment is reversed, and cause remanded, with direction to the circuit court to set aside the judgment appealed from and enter in lieu thereof another conforming to this opinion.