200 Ky. 630 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming.
The following will made by Zedeldah Miller in 1866 is presented for construction:
“In the name of God, amen:
“I, Zedeldah Miller, weak and frail in body, but sound of mind and memory, do make and declare this my last will and testament in manner and form following:
“First: I give and bequeath unto my beloved wife all of my possessions, real and personal, during her natural lifetime, and at her death to be divided as follows, viz.: to my stepson, Robert Layton, I give and bequeath the farm of one hundred (100) acres on the waters of Crooked creek, and of which he has now the possession, and at his death to his children.
“Second: To my wife’s granddaughter, Sarah Gatrel, and her children I give and bequeath the farm of 73% acres on which they now live, and which was purchased of William D. Purdy, and one hundred ($100.00) dollars to be paid them by John Thomas Layton, to whom I give and bequeath the home farm on which I now reside, and to his children, and as to my personal property, I give and bequeath it all, after the payment of my just debts, to my beloved wife, during her lifetime and to be disposed of as she may desire after her death.”
The testator died shortly after the execution of the ■will, and.in 1877, 100 acres of the tract devised to John Thomas Layton were sold at a decretal sale, leaving but 28.90 acres of the boundary which the will set aside to him. That 28.90 acres are now the subject of this litigation.
Some time after .John Thomas Layton came into possession of the 28.90 acres he sold it to one Dorosett and John P. Layton. On the 28th of November, 1882, John Thomas Layton, Dorosett and John P. Layton, joining their wives, conveyed the property to Albert N. Harrington and put Harriugton in possession of it, Since that
Claiming through the will of'Miller to be the owners of the 28.90 acres of land in controversy the plaintiffs, now appellees, brought this action the 9th of February, 1920, averring that John Thomas Layton by the terms of the will took only a life estate, and that plaintiffs took the fee in remainder; that the defendants, the heirs of Harrington, were holding the lands against them, and prayed a recovery of the lands together with damages for the wrongful detention, and for the alleged value of the rentals. The case being submitted on its merits to the court for judgment, it was held that John Thomas Lay-ton, father of part-of the plaintiffs, 'and grandfather of the others, took only a life estate under the will of Zedekiah Miller in the tract of land described in the petition, containing 28.90 acres and therefore could not pass title by conveyance to his grantee, A. N. Harrington, and that the plaintiffs who took the remainder under the will were entitled to recover all the said lands except the one-sixth, interest which John P. Layton took under the will and which he, by the deed of date November 28,1882, joining with his father, John Thomas Layton, conveyed to Harrington. None of the children except John P. Layton joined their father in that deed, and therefore were not affected by it, as held by the lower court.
The first item in the will bequeathed to the wife of testator “all of my possessions, real and personal, during her natural lifetime, and at her death to be divided” as set forth in the will. He thus gave to his wife only a life estate in the real property. In the same paragraph.of the will it was provided “to-my stepson, Robert Layton, I give and bequeath the farm of 100 acres on the waters of Crooked creek, and of which he now has possession, and at his death to his children.” Clearly he gave to Robert Layton merely a life estate with rernainder to his children.
“First: Devises by a father or mother to a son, daughter or blood relation, in which the language ‘to him and his children forever’ is used; second, devises to a blood relation to his children, where the word ‘forever’ is not used following the word ‘children;’ and third, devises by a husband to his wife and her children.
“In all those cases falling within the first class, the word ‘children’ has been construed as meaning ‘heirs,’ and under this construction it has been held that they took no interest in the property devised. In the second class of cases it has been held that the children took a fee, subject to the life estate of their parent. And in the third class of cases the children have been held to take the fee and the parent the life estate; the opinion in the cases falling within this class being rested, as stated, upon the idea that the testator, while wanting his wife to have the*635 full use, benefit and enjoyment of his property during her life, would not want it after her death, to pass to those strangers in blood to him.” Nashville, et al. v. American Machine Co., 145 Ky. 344, and other cases there cited.
The word “forever” as shown above is not used after the word “children,” or after the name of the devisee, John Thomas Layton, clearly indicating that the property was not given to him forever, but merely given to him during'his lifetime, and then to his children.
John P. Layton having sold his one-sixth undivided interest in the property and conveyed it by the deed, to which we above referred, is not entitled to participate in the other five-sixths of the property which his co-appellees are adjudged to own, but appellants, Harringtons, took the one-sixth undivided interest of John P. Layton. The chancellor having arrived at this conclusion, and having entered a decree accordingly, the judgment is affirmed.
Judgment affirmed.