83 Ky. 233 | Ky. Ct. App. | 1885
delivered the opinion op the c'ourt.
Gerhard Holsen, in the year 1839, intermarried with a widow named Dorotha Rockhouse, her maiden name being Niethfeldt. The widow at the time of her sec-
One of his sons, Gerhard, left Covington, where they all resided, about the year 1851, and has not been heard from for1 many years. Holsen, the husband and father, was the owner in fee of the real •estate in controversy at the time of his death.
John Holsen claiming to be the only heir, or rather the sole devisee of his father, by reason of the death •of his brother, the latter having been gone since 1851, • and not heard from, conveyed the property in 1872 to Julia Moog, and she, by a conveyance of the same date, passed the title back to John and his wife Kate, or to the survivor. John died, and Kate Holsen, his wife, claims to own the property.
At the time of Gerhard Holsen’s death he left a last will, by which he made the following devise:
“I, Gerhard Holsen, will or bequeath all what I possess in property and monies, houses and lots to my wife Dorotha Niethfeldt, called wife of Holsen. I bequeath this in good health and sound mind, with the condition that if it is possible after my death • six holy masses shall be read for the following intentions, &c. * * * * * * * *
“After my death you can divide all I left between ■our children according to your judgment, and which is the best towards you and keeps the best the Cath•olic religion.”
The widow made no disposition of this property •during her life, but at her death left a last will, by
Kate, the widow of John Holsen, claims that her husband, the widow (his mother) having made .no ■disposition of the estate during her life, took under the will of his father, and that the conveyance to Moog and the reconveyance by Moog to herself and husband passed to her the fee, she being the survivor. The right of the widow to dispose of tin's estate depends upon the nature of her title acquired by the will of her husband.
If she was vested with the absolute fee the action can be maintained by her devisees; if she had a life •estate, or had vested in her the power to distribute •or divide the estate between the two children, John .and Gferhard, by her last husband, Holsen, then she had no power to devise it to strangers, or so limit the estate as to control the manner in which the title should pass in the event their two sons died without 'Children.
The testator, in providing for his children, has
The testator evidently intended that his children, should derive some benefit from his estate, and invested their mother.with such a title as would enable her to exercise a discretionary power in dividing the estate between them. She, in fact, had only a life estate, with the power to divide it between the, children as she saw proper.
The will is inaptly drawn, and the language used, may not express the real meaning and intention of' the testator, but we must construe the will and -its-provisions as we find it; and looking' to the condition of the ■ testator, with reference to his family, he-evidently wanted his children to have his estate, and to give to his wife the right of appropriating it to-their use after his death, in such manner and proportion and at such a time as she might deem best for their interest. It was a devise by the testator to-his wife of his estate, to be divided between our children at her discretion.
Nor did the testator mean or intend, by the use of the words our children, to include the child of his wife by her first marriage. They had two children living, born of the last marriage, and it would be a strained construction to say • that the father, when disposing of his estate, regarded the child by Roekhouse as much entitled to his bounty as his. own children.
In the case of Collins v. Carlisle’s Heirs, 7 B. M., 14, the testator made this devise: “As to my property and wealth, I first wish all my debts and funeral expenses paid, and the balance of my estate, wholly, I leave to. my beloved wife, Nancy Carlisle, and to be disposed of by her and divided among my children at her discretion.” The question made in that case was as to the character of estate vested in the wife, and it was held that she held only a life estate.
In analyzing the devise in question, there is but little if any difference between its provisions and that of the will of Carlisle, the object in each will being to vest the wife or the widow with a discretionary power in disposing of the estate between the devisee’s ■■children.
In the case of McGaughey’s Adm’r v. Henry, 15 B. M., 383, the land in controversy was set apart by the testator “for the exclusive benefit of my wife, to be disposed of in any way she may think
In the case of Moore v. Webb, 2 B. M., 282, the estate was devised to the widow “to dispose of as. she might think best whilst she survived him, and that whatever disposition she might make of it at-her death should be duly and strictly attended to and stand good in law.” This was held to pass the absolute fee, and in it we find a marked difference from the cases cited in which it was held that the widow had a limited or restricted interest. The power to dispose of the estate whilst the widow survived was. not only expressly conferred in the last-named case, but the power of disposition at her death without - condition was expressly given.
Under the will of the testator, the power to deprive his own children of any part of his estate, or to limit it for life with remainder to those who were strangers in blood, was never vested in his wife, and the undertaking to dispose of the property by her will to the children of Clemens Rockhouse was in violation of' the trust reposed in her by the will of her husband and passed no title. The wife having the power to - give to the two children the estate in such manner - and at such time as in her judgment she thought;
The judgment is reversed, and a nelv trial awarded for proceedings consistent with this opinion.