Isaacs v. Swan

62 Ky. 277 | Ky. Ct. App. | 1864

JUDGE ROBERTSON

bellvereb .the opinion of .the court:

The will of John Isaacs, published in 1826, after two small bequests and a devise of a tract of land to his surviving wife for life, directed a sale of all his estate, except that disposed .-of by those bequests and that devise to his wife, and a distribution of the proceeds among ail his children, except one son, to whom he bequeathed $5.

The context and spirit of the will import ¡that the testator .did not intend to die intestate as to any portion of his estate, .and that he contemplated a final distribution of all of it according to his testamentary wishes, as soon .as it could be conveni,-sntly effected by sale and otherwise.

The remainder in the laud devised to his wife for life was ,-not specifically devised nor expressly mentioned in the Avill. And the only question in this case is, whether it is embraced an .the devise „to sell.

The remainder was an essential portion of the testator’s estate; and, therefore, is literally and legally included in the-residuary devise. This interpretation is fortified by the other considerations indicating the testator’s intent.

We are, therefore, of the opinion-that the remainder i-n the-land devised to the widow for life, did not descend as undevised estate, but was embraced in the devise to sell all the undevised estate.

Wherefore, as this was the judgement of the circuit court,, that j udgment is affirmed...