284 S.W. 1029 | Ky. Ct. App. | 1926
Reversing.
At the time of her death in the year 1908, Sue B Elliott owned three-fifths, and her sister, Edmonia B. Roberts, two-fifths, of the home place known as Beechland. Mrs. Elliott's interest in the property was disposed of by the following provisions of her will:
"According to promise, I give, conditionally to my sister, Mrs. Edmonia B. Roberts, my more than two-thirds interest in the home place, known as Beechland, and wish it to be a home for my sister, Mrs. Kate B. Malone, and my brother, Dr. J. Harvey *150 Browne, as well as herself and that they have equal privileges with her. . . .
"As my brother and sisters pass away I wish my more than two-thirds interest in the home place to descend from one to the other, and when my brother and sisters die, I wish my interest sold, and the money safely invested by the court, and the interest thereon used to keep in order the family lot in Bardstown cemetery, and anything over to be used on the Cosby lot, or for repairs on the Presbyterian church, or for the pastor's salary."
Shortly after the death of her sister Mrs. Roberts qualified as her executrix, and brought a suit in the Nelson circuit court for a construction of the will, and made the various devisees and legatees parties. No specific construction of the foregoing clauses of the will was asked, but the court construed them as follows:
"It is adjudged by the court that the testatrix devised her more than two-thirds interest in the home place mentioned in said devise to her said two sisters, Edmonia B. Roberts and Mrs. Kate B. Malone, and her said brother, Dr. J.H. Browne, for life, that is, as each of them died, the survivor then held a life estate in said home place, and at the death of the last survivor, that the said more than two-thirds interest in said home place should be sold, and the fund kept at interest, and the interest derived therefrom to be used, first, to keep in order the family lot of said testatrix, Sue B. Elliott, in Bardstown cemetery and also the Cosby lot in said Bardstown cemetery; and then the balance of interest derived from said fund to be paid to the Presbyterian church of Bardstown, Kentucky, to be used for repairs on said church and pastor's salary. And the court reserves the power in future to sell said property to carry out said trust."
Mrs. Roberts, who had survived her brother and sister, died in the year 1925, leaving a will by which she devised substantially all of her property to her niece, Edmonia B. Alexander.
Codicil No. I of the will is as follows:
"I, Edmonia Roberts, being of sound mind and disposing memory, do bequeath and direct that my one-third interest (minus one hundred dollars) in *151 the home place as part of the farm and residence known as Beechland, owned by my father, James Marshall Browne, go to my niece, Edmonia B. Alexander, of Bardstown, Ky., in consideration of my love for her and of her devotion to me since my crippled condition. This interest I have in the said home place, I give to the said Edmonia Alexander I give absolutely, forever, in fee simple."
Mrs. Alexander qualified as administratrix de bonis non with the will annexed of Mrs. Elliott, and as executrix of Mrs. Roberts. After notice she filed a motion to have the original suit reinstated on the docket, and asked for an order of revivor. The motion was sustained, and she was permitted to file a supplemental and amended petition, and also her intervening petition. In these pleadings she referred to the prior judgment and averred that the statements in the will and judgment that Mrs. Elliott was the owner of "more than two-thirds interest in the property" was erroneous and a mistake; that Mrs. Elliott owned only an undivided three-fifths interest in the property, and that Mrs. Roberts owned the other two-fifths, and that she as the legatee of Mrs. Roberts was the owner of said two-fifths. In support of this she pleaded their sources of title, and filed attested copies of the title papers. The Presbyterian church of Bardstown filed an answer and petition to be made a party defendant, containing the following allegation:
"That Mrs. Edmonia B. Roberts, as adjudged by this honorable court in this action, was the owner of a life estate in a two-thirds interest in the real estate herein asked to be sold and that at her death said two-thirds interest became subject to be sold as directed in the will of Mrs. Sue B. Elliott, and so adjudged by this court in this action."
It then denied that Mrs. Roberts owned only an undivided two-fifths of the property and affirmatively alleged that Mrs. Alexander was the owner of a one-third interest only. The affirmative allegations were traversed by a reply. Upon these pleadings and the exhibits the court adjudged that Mrs. Alexander, as devisee of Mrs. Roberts, was entitled to only one-third of the proceeds of the sale of the property after the payment of costs, and that the remaining two-thirds of the net proceeds should be paid to a trustee for the purposes named in the will. From that judgment this appeal is prosecuted. *152
In support of the decision of the chancellor it is insisted that the judgment of 1912 is conclusive of the question. It must not be overlooked that in order for a judgment to be conclusive in a case like this it should be made to appear, not by mere argument or inference, but with reasonable certainty that the very matter in dispute was the subject of judicial determination. Scottish-American Mortgage Co. v. Bunckley,
There is the further contention that the decision is correct under the doctrine of election. The argument is that the will purported to devise a more than two-thirds interest in the property, and therefore a portion of the interest owned by Mrs. Elliott; that Mrs. Elliott could not accept the devise without accepting the burden, and, having elected to take under the will, Mrs. Alexander, her devisee, is now estopped from claiming any interest that will defeat or in any way prevent the full operation of the will. It is the rule that where the testator owns property jointly with another, and his intention is not clear, the courts incline to the interpretation that he intended to devise only his own interest, and there is no necessity for an election upon the part of the other owner who receives a benefit under the same will. But if words of description are used indicating a specific gift of the property an election becomes necessary. Brossenne, etc. v. Schmitt,
Judgment reversed and cause remanded, with directions to enter judgment in conformity with this opinion.
