198 Ky. 756 | Ky. Ct. App. | 1923
Opinion op the Court by
-Reversing’.
The sole question involved in this appeal is the correct construction of the will of Thomas" Jones and the codicil attached thereto. The testator died in 1893 a resident of Fayette county, and his will with the added codicil was duly probated in the county court of that county. Eleven years afterwards his executors made a final settlement of the portion of the estate devised and bequeathed to them for distribution, as directed therein, and which they seem to have regarded as all of the estate over which they were given jurisdiction, which settlement was made in a suit brought for the purpose in the Fayette circuit court, and in the judgment rendered therein they were discharged.
Item VI set forth the advancements made by the testator to some or all of his children, in which it appears that his son, W. T. Jones, had received considerably more than any of the other children, and after enumerating the advancements made to him and directing that interest be charged thereon (which, when not otherwise provided, would be calculated from the testator’s death), it is provided: “And if these three several sums amount to more than his distributive share of my estate then I will that the excess be treated as a debt due my estate, to bear interest from and after the date of the probate of my will, and require him to pay said excess and interest.” At the close of the enumeration of the advancements the will says: “The foregoing advancements are to be estimated as a part of my estate, and out of the residuum thereof, hereinbefore devised to my executors in trust, I will that my children are all to be equalized upon the final distribution of my estate, giving one-eleventh to each of my children who may survive me, and one-eleventh to the children of each of such as may be dead. ’ ’
The will was written on February 9,1893, but was not executed before witnesses till May 27 following, and on the la.tter date a codicil was executed in which the testator directed that his son, W. T. Jones, should be charged with interest on two items constituting the advancements made to him amounting to $3,303.64, from February 5, 1887, on one of them, and from February 12 the same year on the other, and said therein “that he (W. T. Jones) shall take nothing from my estate unless his distributive share shall exceed the advancements charged to him in item VI of this my will, & the amount of said two claims with interest. ’ ’ In that codicil he referred to his will and stated that he republished and confirmed “all & singular the foregoing provisions of my will, except that I modify the
Emily C. Jones, testator’s widow, took possession and full control of the two acres of ground devised to her for life, and occupied and controlled it till her death on July 5, 1918, a period of twenty-five years after the death of her husband. W. T. Jones died in 1900 leaving a will in which he made his wife, the appellant, Virginia Jones, his sole devisee. In the distribution made by the executors in the equity action hereinbefore referred to, the portion of the residuum of the estate devised to the executors to be converted into cash not later than the arrival at age of testator’s youngest daughter, Carrie Jones, including the advancements made to all the children, as directed in clause VI of the will, was divided into eleven parts, but the advancements made to W. T. Jones with interest thereon amounted to more than one-eleventh thereof and his widow as his sole devisee obtained nothing in that distribution. On the contrary, the excess of the advancements over and above his share in that distribution, according to the calculations then made, was something near two thousand dollars.
This action was brought by the executors and the surviving children and some grandchildren of the testator against some of the others, including appellant as executrix and widow of W. T. Jones, and her children, seeking to sell the two-acre lot in Lexington' for distribution among those entitled to the proceeds and for settlement of the estate of the testator. It' was alleged in the petition that appellant, as the successor of her husband’s interest in the testator’s estate, was not entitled to any of the proceeds of that lot until the balance of the unpaid advancement made to her husband was paid. The land was sold and one-eleventh of the proceeds, after the payment of cost, did not amount to that balance with accumulated interest. Before any judgment of distribution appellant filed her answer in which she denied the contention of plaintiffs and alleged that it was the intention of the testator, her father-in-law, to charge the advancements mentioned in his will against only that portion of his estate which he denominated in his will as the “residuum” and which he devised to his executors in trust to be handled and disposed of as directed in the will, and that he did not intend for any portion of any of the ad
There is no contention but that the testator died testate as to all of his property. At common law no accounting for advancements made by the testator during his life to any of his devisees could be demanded by the others in a settlement of his estate according to the terms of his will, since the doctrine of advancements applied only to intestate estates when distributing them under the particular statute or law regulating descent and distribution. And that was true at common law although there was a partial intestacy, as will be seen from the text in 1 R. C. L., page 657; but section 1407 of our statutes changed that rule and provided that advancements should be taken into consideration in the distribution of that portion of the estate not disposed of by the will in the same manner as in the distribution of undevised property of an intestate decedent under our statutes of descent and distribution. Therefore, when the ancestor, as in this case, left a will disposing of his entire property, the questiqn of advancements does not enter into the disposition of his estate under the terms of his will, unless it makes provisions therefor, and then only in so far and to the extent that the testator so expressed in the language he employed in his will. Gully v. Lillard’s Executor, 145 Ky. 746, and Brewer’s Admr. v. Brewer, 181 Ky. 400, and other cases found in the note to the section of the statute, supra.
The rale is universal that in arriving at the intention of a testator the court should look to all the language which he employed, and if in doing so his intention can be ascertained, it is the duty of the court to administer that intention regardless of other collateral and subsidiary rules which may be looked to in arriving at the intention when it is otherwise enveloped in more or less obscurity. In the will under consideration the testator expressly directed his executors to repair the property he devised to his wife for life, and directed them to take charge and oversight of his real estate for the purpose of carrying out the directions given them, but said “that devised to my wife alone excepted.” By that expression he excluded from the trust fund that property and by the same act excluded the right of the executors to either take charge of it or to exercise any control over it. In other words, they were to have nothing to do with it except to put it in repair.
In item V of his will he provided that “the foregoing advancements are to be estimated as a part of my estate, and out of the residuum thereof, hereinbefore devised to my executors in trust,” he provided that his children should be equalized. According to our interpretation of that language the testator expressly charged the advancements as a part of “my (his) estate” and out of the residuum as thus composed the ones to whom the advancements were made were to be equalized, and in the same sentence he expressly stated what he meant, and what property was covered by or included in the term “residuum,” by saying “hereinbefore devised to my executors in trust.” He had thereinbefore not only not devised to them any property in trust, except that covered by the residuary clause, but he expressly provided, as we have seen, that the two-acre lot in Lexington should not constitute any part of that trust. Not only so, but he like
But it is insisted that the codicil changed the effect of the language of the will even if it should be construed as we have above indicated. It is true that a codicil may cut down, modify or entirely destroy an estate created by the original will, but in order to have that effect the language of the codicil should manifest a clear intent to do so. Bedford v. Bedford’s Admr., 99 Ky. 273, and 40 Cyc. 1415. In other words, a codicil is nothing but a subsequent or added clause to the will and a prior created
It is difficult sometimes to find adjudicated cases supporting our conclusions in every particular in the construction of wills, because the facts of no two cases are alike; but the question to be determined (the intention of the testator) must always be arrived at from a consideration of the particular language of the particular will under consideration. The polar star which should always guide the courts in arriving at the correct interpretation is the ascertained intention of the testator to be gathered from the language he employed, and that rule, ás often expressed by this and other courts, surrenders to no other if- the language is clear and unambiguous. One of the latest cases from this court so holding is that of Gatto v. Gatto, 198 Ky. 569.
In opposition to the above conclusions it is strongly urged that wills should be so construed as to equalize the property between or among those standing in the same relation to the testator. But, it must not be forgotten that it is never invoked where the language of the testator is otherwise plain, since he has the right by his will to dispose of his property as he sees proper, entirely eliminating therefrom the consideration of equality. As we interpret the provisions of the will involved we do not arrive at the point where it becomes necessary to invoke the rule contended for, since as we construe it the testator intended for the advancements mentioned in his will to be charged against the trust fund devised to his executors and to none other; and that if it was insufficient to liqui
Entertaining these opinions, it results that the court erred in sustaining the demurrer to appellees ’ answer and the judgment is reversed with directions to set it aside and overrule the demurrer, and for subsequent proceedings consistent with this opinion.