118 Ky. 512 | Ky. Ct. App. | 1904
Opinion of the court bp
Affirming,
This controversy involves the title to 356 acres of land in Mercer county and certain town lots in Harrodsburg, formerly owned by "William Payne, who died testate in the year 1890. fee bad but one child, a daughter, who married Dr. W. P. Harvey, and died many years before her father, leaving four children, William P., Sibbie May, Lila Kate, and Frank Wayne Harvey; all of them, at his death, of age. William P. Harvey died on May 9, 1891, unmarried, and without issue. Sibbie May married W. C. Bell, and died on April 2, 1897, leaving surviving her one child, W. C. Bell, Jr. Lila Kate
“Realizing the uncertainty of life, and being of sound mind and disposing memory, I, Wm. Payne, of Harrodsburg, Ky., do make this my last will and testament.
“1. I direct my executor to sell all my personal property, except as hereinafter directed, collect all debts due me, pay all my just debts, and the residue he is to hold and dispose of as herein devised.
“2. I hereby specifically devise to my granddaughter, Lila Kate Harvey, in trust as hereinafter named, two store buildings [here follows description].
“á. I hereby specifically devise to my grandson, Frank Wayne Harvey, in trust as hereinafter stated, my two store building's and lots [here follows description].
“5. I bequeath absolutely that all my beds, bedding, furniture, books and pictures, tableware be divided equally between my two granddaughters, Lila Kate and Sibbie May Harvey.
“6. I bequeath absolutely to my grandson, Frank Wayne Harvey, my gold watch and chain and breech-loading shotgun.
“7. I devise and bequeath three-fourths of all the residue of my estate, whether real, personal or choses in action, in trust, to my aforesaid granddaughters and my aforesaid grandson, Frank Wayne Harvey, to be equally divided between them.
“8. The property or interest in property herein devised or bequeathed to my said grandchildren, Lila Kate, Sibbie May and Frank Wayne Harvey, in trust, to be managed and controlled for their respective benefits by their father, W. P. Harvey, whom I hereby appoint my executor and their trustee, and desire that he shall act in both said capacities without bond or security. Said trust is qualified thus: If said W. P. Harvey deems it wise at any time he may hand over all or any part of their property to said devisees, or any of them, at any time, and free the same from trust. The evidence that the same is so freed from trust shall be the written deed of said W. P. Harvey filed and recorded as other deeds, both as to the realty and personalty so freed from trust. I also empower said W. P. Harvey to appoint his successor as trustee, but the freeing said property from trust is a power lodged only in said Harvey as trustee.
“10. Should the contingency arise as provided for in the next preceding section (9) of this will, the property thus received by my said grandchildren or either of them is to be in trust under the same powers as expressed in the eighth clause of this will.
“11. The other fourth of the residue of my property and estate, three-fourths of which is disposed of in the 7th clause of my will, I devise and bequeath to the children of my grandson, Wm. P. Harvey, or their issue. Should my said grandson, Wm. P. Harvey die without child or children or their issue, the estate devised and bequeathed by this clause or section of my will, I devise to be held and disposed of as provided in the 9th clause of this my will.
“12. The said property I devise in the said eleventh clause or section of this will I put in the hands of my son-in-law, W. P. Harvey, as trustee to control and manage as he may deem best; and Thereby empower him at his discretion to US6 the income, issues or profits for the comfortable support and maintenance of any said grandson Wm. Payne Harvey during his life, but it is to be distinctly understood that I give my said grandson no interest in said income, issues or profits, leaving it wholly discretionary with my said trustee or his successor to use the said income, issues or profits in that way if he deems proper. I specially direct that said income, issues and profits can not be alienated or charged in any way by my said grandson, Wm. Payne Har
“13. I hereby provide that if any of my devisees, or my said grandson, Wm. Payne Harvey, contests this will, or tries to cancel the same by any proceeding in court, then the provisions in this will as to such contestee shall be considered annulled, and such contestee shall have only $100.00 of my estate in lieu of the devise as to such, and in such event the lapsed devise or bequest of such is to go to those of my said grandchildren, Lila Kate, Sibbie May, Frank Wayne Harvey, who do not contest, to be held in the same way as the devise to them so taking. Should my grandson, Wm. Payne Harvey, so contest my will, then and in such event, the discretionary power lodged in my trustee as to said income, issues and profits is taken away from said trustee, and in such event the said income, issues and profits are to be paid over to the devisees not contesting.
“lá. I hereby empower my said executor and trustee to sell any or all of said real estate specifically or generally devised and reinvest the same either in or out of this State, the reinvested property to be held on the same trusts as the original.”
The circuit court adjudged the property to W. C. Bell, Jr. Appellants maintain that the condition as to the death of the devisees without issue is limited to their death in the lifetime of the testator, and rely on section 2342, Ky. St., 1903: “Unless a different purpose appear by express words or necessary inference, every estate in land created
Appellee also relies on section 2344, Ky. St, 1903: “Unless a different purpose be plainly expressed in the instrument every limitation in a deed or will contingent upon a
In the elaborate argument made by the distinguished counsel many authorities are relied on as to the proper meaning of words of survivorship, and, as there seems to be an apparent conflict in the decisions of this court on the sub ject, we have examined them with care. We find that, while there are in some of the opinions' dicta not readily to be reconciled, the decisions themselves are more harmonious. and may be summed up as follows:
Yt.^Where an estate is devised to one for life, with remain-tier to another, and, if the remainderman die without children or issue, then to a third person, the rule is that the words “dying without children or issue” are restricted to the death of the remainderman before the termination of the particular estate// Thus., in Bimey v. Richardson, 35 ■Ky., 424, the testator devised the estate to his wife for life, or during ha' widowhood, and at her death or marriage to be equally divided by his executors' between Ms children; directing that if “any or either of the above mentioned children should die without a lawful heir begotten of their body, then his or her part of the estate to be equally divided among my surviving children.” The children were at the time infants. The widow married about two years after the testator’s death. After this a daughter married, and subsequently died without issue. It was held that her estate became absolute on the marriage of her mother, and was not defeated by her subsequent death without issue. In Wren v. Hynes, 59 Ky., 129, the testator directed the dividends on his bank stock paid to his widow until the youngest child arrived at age; adding this: “It
2. Op, the'same principle,'’where property is devised to one or more infants, and is to be held by their trustees or guardians until they are twenty-one years old, and then be turned over to them, or divided between them, with the •proviso that, if they die without issue, it shall go to the survivors, or, if all die, to a third person, it has been held that the limitation as to dying without issue is to be limited to a death in infancy before the period of distribution. Hughes v. Hughes, 51 Ky., 115; Thackston v. Watson, 84 Ky., 206, 8 R., 193, 1 S. W., 398; Trabue v. Terry, 9 S. W., 161, 10 Ky. Law Rep., 345; Wilson v. Bryan, 90 Ky., 482, 12 R., 431, 14 S. W., 533; Jones v. Moore, 96 Ky., 273, 16 R., 561, 28 S. W., 659; Kephart v. Hieatt, 78 S. W., 425, 25 Ky. Law Rep., 1602.
3. 'Ajjd^where, by the will, the devise is to a class, and the period of division is,, postponed, even where the devisees are not infants, it has been held that the limitation as to
4. On the other hand, where there is no intervening estate, and no other period to which the words “dying without issue” can be reasonably referred, they are held, in the absence of something in the will evidencing a contrary in? tent, to create, a defeasible fee which is defeated by the death of the devisee at any time without issue then living^. Thus, in Hart v. Thompson, 42 Ky.,. 482, the devise was i' “My will and desire is that all my estate, both real and personal, be equally divided among my said nine children, then living or their lawful heirs if dead, and if either of my nine children should die without heirs of their body, lawfully begotten, that their part, so allotted and given them as aforesaid, be equally divided amongst my other children then living.” One of the devisees died a single man, and without issue, a few years' after his father, leaving a will by which he devised his share of the property. It was held in an opinion by Judge Ewing that he took a defeasible fee, which was defeated by his death without issue, and that his share passed to the other ohildrefn then living. The same rule was followed in Deboe v. Lowen, 8 B. Mon., 616, Judge Marshall writing the opinion, where the devise was to the children of the testator, with this qualification: “It is also my will that if any of my children die without lawful heir or heirs the property hereby willed go to my surviving children.” The question was again presented in Daniel v. Thomson, 53 Ky., 662, where the will read: “It is my wish that all the property that may be included in this my last will and testament to my sons C. E. and J. R, Thomson, in case either or both dying without leaving a law
In Sale v. Crutchfield, 71 Ky., 636, the testator devised to his son Edmund Hampton eight acres of land in Louisville, providing: “And if ’said Edmund shall die without lawful issue, it is my will and desire and I do hereby direct that the estate herein devised to him shall go to his sisters in equal portions and if either or both of them be then dead, to the child or children of such dead sister, the children taking the share of the dead parent.” Edmund Lampton sold off the land, in lots, and many years afterwards died childless. After his death the surviving sister and the children of the one who had died sued his vendees for the property. On an elaborate review of the authorities the judgment in their favor was affirmed. In Crozier v. Cundall, 99 Ky., 202, 18 R., 116, 35 S. W., 546, the testator devised certain property to his daughters Almyra and Patsy, “to them and their heirs forever,” with this clause qualifying the devise: “In the event that either of my daughters Patsy or Almyra should
But in these cases the question was not before the court, ■because the devises were not direct. In the case of direct bequests of personalty, which the court evidently had in mind, the rule stated obtains, for it perishes with the using, and the testator is not presumed to look beyond! the distribution he desires his executor to make. But in devises of real estate, as shown in the cases cited, the rule is different; .and in these words of survivorship will not be referred to death without issue in the lifetime of the testator, unless there is something in the will showing this was his meaning. It is alleged here in the petition to which! the court -sustained a demurrer that the testator left an estate of about $60,000 — $10,000 in personalty and $50,000 in land. 'The allegations of the • petition must be taken as true on demurrer, and we have, therefore, a case where both realty and personalty are involved and where both are, by the will, placed in the hands of the trustee; the personalty ■standing as the realty, and not being directed to be distributed by the executor to the devisees.
Appellants rely on Wills v. Wills, 85 Ky., 486, 9 R., 76, 3 S. W., 900; Carpenter v. Hazelrigg, 103 Ky., 534, 20 R., 231, 45 S. W., 666; and Jackman v. Jackman, 73 S. W., 776, 24 Ky. Law Rep., 2245. In the Wills case it was held
In Carpenter v. Hazelrigg and Jackman v. Jackman the property was devised to a class, and directed to be divided between them, The devisees survived the period of division, and these cases may be rested on the ground that the dying without' issue was intended merely as a guide to the mode of division. The dicta above referred to were alluded to in-the Wills and Carpenter cases, although they involved real estate; but these cases plainly were not intended to announce a new rule, or to depart from the principles theretofore laid down, and they are not to be understood as conflicting with the previous decisions of the court. All the cases recognize the rule that, where there is any period to which words of survivorship can be reasonably referred, they will be so construed. All the cases also recognize the rule that in theenct all rules of construction are but means' of ascertaining the testator’s intention, and that, when this is apparent from the whole will, it must be enforced. No Procrustean rule can, therefore, be laid down as to the construction of words of survivorship, for while the words in one clause may have a well defined legal meaning, there may be other things in the will making it manifest that the testator actually used the words in a different sense, and when this is the case the rights of the parties must be determined by the meaning of the will taken as a whole. It is rare that two wills are exactly alike, and so, after all, rules of construction are often difficult of application. From tliiá arises much of the apparent confusion in the decisions.
Under these principles, how stands the case before us?
We therefore conclude that the limitation as to the death of any of the grandchildren, without issue can not be restricted to a death in the lifetime of the testator.
It remains to determine whether there is any other period to which it may be reasonably referred. The eighth clause, creating the trust as shown, contains these words': “If said W. P. Harvey deems it wise at any time he may hand over all or any part of their property to said devisees, or any of them at any time, and free the same from trust. The evidence that the same is so freed from trust shall be the written deed of said W. P. Harvey filed and recorded as other deeds both as to the realty and the personalty so freed from trust. I also empower isaid W. P. Harvey to appoint his successor as trustee, but the freeing said property from trust is a power lodged only in said Harvey as trustee.” By a deed
“Whereas Mrs. Lilah Harvey Loving, late wife of the undersigned J. W. Loving, departed this life February 14th, 1899, residing at Campbellsville, Taylor county, Kentucky, leaving a last will, which is not yet probated, in which the undersigned J. W. Loving is the principal devisee, she dying without issue and appointing said Loving her executor without bond, and whereas under the will of her grandfather, William Payne, none of the real estate mentioned in said will passed to her only for and during her life, but only personalty owned by her at her death; and whereas the said Loving and the undersigned W. P. Harvey the father of the said deceased, Frank W. Harvey, and W. Conn Bell,
We therefore conclude that the circuit court properly held that W. C. Bell, Jr., took under the will, the entire title to the real estate referred to.
Judgment affirmed.
Petition for rehearing by appellant overruled.