124 Ky. 812 | Ky. Ct. App. | 1907
Opinion op the Court by
Reversing.
W. H. Cole died testate, a resident of Mason county, and a question arising as to the interest which bis wife, Jane Cole, took in bis estate under bis will, suit was- filed in the Mason circuit court for a construction of the will- and a determination of the rights of Jane Cole, widow of the deceased, thereunder. The will, omitting the formal portions thereof, is as follows: “First. It is my will and desire that so much of my personal property, preferring that which is perishable, as may be necessary, be sold
Applying ihese well-established rules of construction to the will before us, what estate did the testator give to his wife? In the first clause thereof he directs the payment of his debts and funeral expenses, and he gives explicit directions as to the manner in which the executrix shall proceed: First, that the perishable personal property shall be sold and the proceeds applied to the discharge of his debts, and in the event that-a sufficient sum of money is not realized by this sale, then the executrix is directed to sell certain real estate in the town of Mayslick. In the second clause of the will the rest and residue of the estate is given to his wife during her natural life, and if the will stopped with these words, there would be no question whatever but that the testator intended his wife to take the life estate only, but the gift and bequest to his wife “for and during her natural life,’’ is qualified by the phrase, “to own and do with as she pleases.”” This last phrase, in the absence of any devise to her for life, and in the absence of any other qualifying; clause, would give to the wife the personalty remaining unused in the satisfaction of debts, absolutely, and the fee simple to the real estate. But the second clause of the will must be read in connection with the first clause. In the first clause we find that the executrix is empowered to sell certain real estate in the event that it should become necessary to do so to pay his debts. A fair interpretation of this clause of the will is that the executrix is not empowered or authorized to sell any real estate whatever, except it should become necessary to do so for the payment of his debts. This construction placed upon the first clause
Adopting this- rule, we are of opinion that the widow, Jane Cole, took only a life estate in the realty left by her husband. This construction is supported by the case of Brant v. Virginia Coal & Iron Company, 93 U. S. 327, 23 L. Ed. 927, in which the following language in the will of Robert Sinclair, was under consideration: “I give and bequeath to my beloved wife, Nancy Sinclair, all of my estate, both real and personal; that is to say, all of my lands, cattle, horses, sheep, farming utensils, household and kitchen furniture, with everything that I possess, to have and to bold during her life and to do with as she sees proper before her death. ” The complainant in that suit contended that the widow took only a life estate in the property, whereas it was contended for the widow that she took the absolute fee, and the court said: “We are of the opinion that the position taken by the complainant is the correct one; the interest conveyed by fbe devise to the widow was only a life estate-; and the accompanying words, ‘to do with as she sees proper before her death, ’ only confer power to deal with the property in such manner as she might choose consistently with that estate, and perhaps without liability for waste committed. These words used in connection with a conveyance of a leasehold estate would never be understood as conferring a power to sell the property so as to pass a greater estate. Whatever power of disposal the words confer is limited by the estate with which they are connected.” And in that same case the court quoted with approval the
Under a fair and reasonable construction, therefore, of the will before us, the wife, Jane C’ole, or Jennie Cole, as she is called in the will, takes an estate for life in all of the property which passed under the will of her husband to her, and she is to have as full and free use of said property as a tenant for life can have-Pull force and effect must be given to the phrase, ‘ ‘ for and during her natural life.” The testator means something by tire use of this phrase. It is true that it is qualified by the further phrase, “to own and do with as she pleases,” but when the two are read together, and especially in connection with paragraph 1 of the will, the purpose of the testator is plain. lie intended to give to his wife the free use and enjoyment of all his estate during her life, and while this construction of the will before us leaves the remain ier or fee of this estate undisposed of, still, it is not the province of the court to dispose of it for him, nor is it the policy of the law that this should be done.
Judgment is reversed, and cause remanded, with instructions to the trial court to enter a judgment giving the wife, Jane Cole, a life estate in all of the real estate left by her husband.