217 S.W.2d 645 | Ky. Ct. App. | 1949
Affirming.
Irvine Horseman died testate on October 8, 1947, a resident of Clark county, Kentucky. Prior to his death, and on July 16, 1943, he executed his last will and testament in which he appointed his widow, the appellee, Elnora Horseman, executrix thereof and she qualified as such. By the first clause thereof it provided for the payment of his debts; by the second clause decedent devised to his wife all of his real estate "which is my farm on the Ford and Hampton road, for and during the term of her natural life," and to her absolutely all of his personal property owned by him at his death. Clauses 3, 4, and 5 of the will are as follows:
"Item Three: I give and devise to my three sons, Nolan Horseman and Oren E. Horseman and Ora Gilmore Horseman, all of the remainder interest in my real estate, consisting of my farm hereinabove described, subject to the life estate of their mother, and in fee simple to be theirs in equal shares after their mother's death.
"Item Four: My farm is under mortgage for a balance of some Six Thousand Dollars ($6,000.00); and it is my will that my said wife and three sons hereinabove named shall have the right to make such disposition of said mortgage as they see fit either by sale of the property and payment of the debt, or in any way they wish to handle it.
"Item Five: I have another son, Esten B. Horseman, I have not made any provision for him in this will. This is not because of any lack of affection for my said son, but my three other sons hereinabove named have worked with me to make what I have, and I feel that it is only just and right that I should provide for them as herein above stated."
In addition to the three sons mentioned in clause (3) of his will, testator had a fourth son, the appellant, Esten Horseman, who was the first born of his marriage. Shortly after the birth of appellant his father and mother separated and appellant shortly thereafter (the time not stated in the petition) was placed in the custody of a relative. Although his parents were later reconciled *291 he never returned to their home, but was reared in the home of his custodian. He has now reached adult age and has never married. After the placing of appellant in the home of his relative, and before the testator's death, Ora G. Horseman, one of the three sons named in clause (3) of his father's will, died unmarried and without issue.
On March 13, 1948, the appellant filed this declaratory judgment action in the Clark circuit court against his mother as executrix of his father's will and his two surviving brothers, Nolan Horseman, and Oren E. Horseman, in which he alleged that the death of his brother, Ora G. Horseman, without issue and before the death of the testator, produced a lapse of his devised one-third interest in the testator's farm, as mentioned in clause (3) of his father's will, and that it reverted to his father's estate and became undevised property to which he inherited one-third of his deceased brother's share as his father's heir. He prayed that the court so adjudge which, if correct, would entitled him to a one-ninth remainder interest in the farm owned by his father at the latter's death. Defendant filed a general demurrer to the petition which the court sustained and dismissed the petition on plaintiff declining to plead further. From that judgment plaintiff prosecutes this appeal.
The argument of defendants' counsel in support of their demurrer to the petition is bottomed on subsection (1) of section
"When a devise is made to several as a class or as tenants in common, or as joint tenants, and one or more of the devisees die before the testator, and another or others survive the testator, the share or shares of such as so die shall go to his or their descendants, if any; if none, to the surviving devisees, unless a different disposition is made by the devisor."
On the other hand, it is argued by counsel for appellant that section
"Unless a contrary intention appears from the will, real or personal estate, comprised in a devise incapable *292 of taking effect, shall not be included in the residuary devise contained in the will, but shall pass as in case of intestacy."
That section, however, is inapplicable to the situation here for two reasons, (a) it is not applicable in any event where "a contrary intention appears from the will," and (b) it is not made applicable by its terms to a devise to a group or class of devisees as joint tenants or tenants in common created by the testator, or testatrix making the will. It is apparent, therefore, that the latter section does not apply to and has no effect upon the proper determination of the question presented by this record. Instead, it clearly appears and we so hold that the rights of the parties are to be determined, and are governed, by the provisions of section
Independently, however, of the foregoing conclusion it will be noted that upon the death of a member of a group or class before that of the testator his interest as a member of the designated class shall become vested in the survivors of the class, as prescribed in section
Supporting the right of a testator to create a class of devisees composed of a less number than the natural class to which they belong is the text in 57 A.J. 831, section 1259, which says:
"The only universal rule for determining whether testamentary gifts to several persons are gifts to them as a class rather than as individuals is to ascertain the intention of the testator, which, it is everywhere conceded, is controlling. The decisive inquiry is, whether or not the testator, in making the particular gift in question, did so with 'groupmindedness', whether, in other words, he was looking to the body of persons in question as a whole or unit rather than to the individual members of the group as individuals; if the former, they take as a class. Any additional circumstances which may be seized upon, such as the general scheme of the will, the manner and form in which the beneficiaries are designated, the particular language used, or the relationship of the *294 parties and the circumstances surrounding the testator, are to be regarded merely as aids in ascertaining the testatorial intention."
Further along in the same section the text says:
"But a class, in legal contemplation, need not be a natural class apart from the grouping made by the testator, for a gift, such for instance as one to 'A and the children of B' may be made to persons not coming under any common description in such a maner as to constitute them a legal class."
Among the cited authorities in support of each excerpt are: Walker v. First Trust Savings Bank, 8 Cir.,
"The devise of one-third of the residue to James Hanley, one-third to Dennis Hanley, and the remaining one-third to Ellen Ratler, with the restrictions as to her third, as defined in the will, was to them as joint tenants, or tenants in common as these terms are used in section 2064."
Other domestic cases sustaining the interpretation and application of the provisions of section
We deem further elaboration of the question raised unnecessary and the same is true in regard to additional authority for our conclusion as to the intention of Irvine Horseman to vest the final and unencumbered title to his *295 real estate after the death of their mother in his three sons or the survivor or survivors of them at the time of his death without any reverter to his estate of the share of any member of the group predeceasing him.
Wherefore, the judgment is affirmed.