67 Ky. 110 | Ky. Ct. App. | 1868
Lead Opinion
dewyered the opinion op the majority op the court:
By the second item of his will, John I. Jacob devised all his estate, “real and personal, to my (his) executors, the survivor or survivors of them, for the purpose of executing this will.”
“ 3d. All my estate, real and personal, after the payment of my debts, shall be equally divided among my children by three commissioners, to be appointed by and under the supervision of the Louisville chancery court, except as herein directed.
“ 11th. The share of my estate allotted to my son, William R. Jacob, shall be retained by my executors, paying to him during his life, quarter-yearly, the net proceeds of the rents and profits thereof, after deducting repairs, insurance, and taxes, with power to sell any unimproved
The legal title of W. R.. Jacob’s share remained in the executors as trustees, to pay over quarterly the annual .profits to him, with power to sell unimproved’real estate, for the purpose of-investing the proceeds in permanent improvements.
When the commissioners should divide the estate, as provided in the will, and allot William’s share, still the legal title would remain in the executors, for the purpose of executing the will, which, so far as he was concerned, would be to pay over to him the annual profits during his life, and at his death to convey and pay to his descendants or heirs, in such proportions as they would be entitled to had the estate descended from him to them.
The testator clearly manifested a desire to make the estate as profitable to William during his life as could reasonably be done consistent with the rights of those in remainder, by vesting the power in the executors to sell unimproved estate and vest it in improved; and that he intended to carve out a life estate only to his son William, is quite as apparent from his vesting the legal title in his executors, there to remain until his son’s death, wfithout power of alienation, conditional or otherwise,
It was not intended by the testator that there should be any incongruity in the different items of his will; therefore, the second, third, and eleventh should be construed as consistent'arid harmonious, unless the language disallows this. ’ ' ' •
The second devised all his estate to his executors, for the purpose of executing his will; and so far as William is specially named and provided for, it is found in the eleventh item, and which gives him the profits for life, with remainder to his descendants or heirs. The third clause was, then, evidently intended to specify the portions and manner of the division — that is, equally and by three commissioners, to be appointed and controlled by the chancery court. Having therein provided that the estate was to be divided into equal shares, and by what process this was to be ascertained, except as to some specific devises following, the testator then proceeds with his direction and devise as to each share, making the desired limitations, &c.; and this is umade the more manifest in the twelfth, thirteenth, and fourteenth clauses, by which he directs that the property allotted to his daughter, Susan Maria, and his other daughters, “ shall be held by my executors in same manner as in the eleventh clause mentioned, for the use and benefit of each of said daughters, severally, during her life, * * ' * and after her death to be conveyed and paid to her descendants or heirs, as in said clause mentioned;” and as to property allotted to each of his sons, except John, to be held “ in like manner, for like use of each of said sons, severally, during his life, with lik,e restrictions,” &c., “ and after his death
Thus he had, by subsequent clauses, each, however, referring to the eleventh clause, limited the previous devises to a life estate in all his other children, and no perceptible motive can be seen for exempting William from this general purpose of the testator to give a life estate to his children, with remainder over to their descendants.
Whatever construction, therefore, might have been given to the third clause, uncontrolled by the subsequent clauses, yet, with this manifest purpose of the testator therein appearing, it must be construed as harmonious with the subsequent clauses, or, if inconsistent therewith, it must give way under a familiar rule, that the last will must prevail.
But these devisees in remainder, though taking under the will, and not as descendants or heirs of William, still take precisely the same as though the property had descended by law from him. In other words, had there been children and grandchildren, whose parents were dead, then each child would take a share, and the children of the dead child would take the share their parent would have been entitled to if alive. So, as William left a surviving widow, and but one child and descendant, the widow took a dower interest, as legatee by implication, and the child took the other estate in fee, just precisely as though the property had been owned in absolute fee by William, and he had died intestate.
All these provisions manifest an intention in the testator, that, should any of his sons die, his surviving wife should be endowed, as he devises the remainder to those who would take under the laws of descent from the holder of the life estate.
The appellant is entitled, as legatee by implication, to so much as she would have taken from her deceased intestate husband had he owned the estate.
Judgment reversed, for further proceedings consistent herewith.
Concurrence Opinion
concurring with the decision op the majority OP THE COURT IN THE POREGOING OPINION, BUT NOT CONCURRING WITH THE REASONING THEREIN, DELIVERED THE FOLLOWING SEPARATE OPINION:
After the opinion first delivered unanimously by this court, a rehearing was granted on an able and earnest petition of a party that had not been heard before that decision. The case has not been reargued except by that petition.
The majority of the court has taken back the first opinion, and substituted another, essentially different, on the construction of the will of J. I. Jacob. Both opinions allowed the widow of W. R. Jacob dower, and concur in one of two grounds adjudged by the first; and, consequently, I concur in the conclusion of the last opinion. But as the unanimous concurrence in so much of the last opinion, as gives to the widow all she claims, I thought it unnecessary and rather unsafe to overrule, by a bare majority, the construction of the will given in the first opinion. I considered it more prudent and befitting to leave that superfluous matter undecided as it stood when the rehearing was granted. But as the majority saw fit to take another course, and I cannot concur in its changed construction of the will, and, able
This is a friendly litigation between a widowed mother and her infant daughter, for the purpose of obtaining a judicial construction of a devise by John I. Jacob to his son, William Robinson Jacob, the husband of the widow, and father of the daughter, who is his only child.
The devisee, W. R. Jacob, having survived the testator and died intestate, his widow claims dower in the estate devised to him; and his infant daughter’s next friend, claims the whole of the estate unencumbered by dower.
The Chancellor adjudged the whole estate to the child; and this appeal by the widow requires a revision of that judgment.
The clauses of the will which bear directly on the question herein involved are as follows:
“ 2. I devise all my estate, real and personal, -to my executors, the survivor or survivors of them, for the purpose of executing this will.
“3. All my estate, real and personal, after the payment of my debts, shall be equally divided among my children by three commissioners, to be appointed by and under the supervision of the Louisville chancery court, except as herein directed.
*118 “11. The share of.my estate allotted to my son William Robinson Jacob shall be retained by my executors, paying to him during his life, quarter-yearly, the net proceeds of the rents and profits thereof, after deducting repairs, insurance, and taxes, with power to sell any unimproved property in his share for the purpose of vesting the proceeds in permanent improvements; but he shall have no power to sell or encumber any part of the estate so allotted, or the profits thereof, or anticipate its receipts; nor shall the same be, in any way, liable for his debts. After his death the property, with the unexpended avails, shall be conveyed and paid to his descendants, if there be any such then living, in the same manner it would pass by the law of descent if the same were to descend from him; if there be no such descendants, then the same shall be conveyed and paid to his heirs.”
Other provisions in the wall prescribed the same restrictions and qualifications on the property to be allotted to some of the testator’s other sons, and to all of his daughters ; and all the inter-alotments had been made before the death of William Robinson Jacob.
The spirit and context of the will manifest a cautious purpose to preserve the estate devised to most of the testator’s children for the benefit of themselves and families, and for secure transmission to their immediate descendants or heirs; and that provident aim was his only presumed motive for devising the legal title to his executors and securing the equitable title from improvident alienation or encumbrance by the testamentary beneficiaries to whom, by the third clause, he devised it, without limitation as to time, except in the usufruct for life.
The will imports an absolute devise to his children, subject only to the legal title in the trustees, and to the
Having secured the title from alienation by the devisees to the prejudice of “their descendants or heirs” to whom it would then go by law, there was no necessity for a specific devise for transmitting by will precisely the interest which would, undevised, pass to the same persons, and to exactly the same extent. There could be no consistent motive for such apparent absurdity, unless he intended, unreasonably and unjustly, to deprive widows of dower and surviving husbands of curtesy; and such a purpose could not be imputed to such a man and such a fathér as John I. Jacob, of Louisville; and such an intent is also negatived by his silence on that subject, and by his declaration that the transmission should be as by descent.
By harmonizing the will consistently with its context, and with reason and justice, the appellee’s title is that of the heir of her father, and not of a devisee of her grandfather; but if the appellee even holds as devisee and not as heir, the testator’s declaration that the title shall pass as if it descended from her father, subjects it to all the same legal consequences so far as the widow is concerned, and,-reserves all her rights as in estate descended from her husband. Therefore, even according to this interpretation of the will, the testator did not intend to cut her off; and, consequently, •as widows here are dowable of equitable estates which descend, the appellant is entitled to dower in this case.