87 Ky. 95 | Ky. Ct. App. | 1888
delivered the opinion op the court.
This case is here for the construction of the will of Win. Ch. Kraft, deceased. He died in January, 1866, leaving his widow surviving him and an infant daughter, Emma, who at his death was four years of age. His widow subsequently married, and had children by her second husband, and is now dead. This controversy is between the child of the devisor and the children of the same mother by her second husband. It is claimed by the appellees, the children by the second marriage, that their mother, under the will of her -first husband, acquired a joint interest with the appellant, Mrs. Koenig, her only child by the first marriage, in the estate devised, and that at the mother’s death, she owning a half interest, it descended from her to all three of the children.
In a controversy between these same parties, in which the present appellant sought to cancel a deed made by her to her half brother and sister of an equal interest in some real estate devised to her by her father under a misapprehension of her rights, this court held that the devise to the daughter was in fee, subject to a
It is plain that the extent of the interest of the mother and child in the estate under the will had an important bearing in determining the question raised in the former litigation, and as the question is again presented, we find it necessary to differ from the chancellor as to its construction.
The language of the testator’s will is as follows: “I give and bequeath to my beloved wife; Elizabeth Kraft, all my real, personal and mixed estate of which I may be possessed at the time of my demise, for her and her child, Emma Kraft’ s, sole use and benefit, and give my beloved wife full power and authority to sell my real estate what I now hold on Walnut near Clay street, but no other, and I appoint my beloved wife Elizabeth as executrix of this my last will and testament, without security.” Under this devise, if the widow takes an equal interest in fee with the infant child of the testator, that interest extends to the entire estate, as by the clause of the will quoted he gives to his wife
The limitation of the power of the wife as to the disposition of the realty is inconsistent with a grant of the fee, and evidences a plain intent on the part of the devisor to place this property under the control of his wife in trust for her and the child’s sole use and benefit; and in the use of the property you may sell certain realty but no other, the testator evidently contemplating that a necessity might exist for a sale of this realty, that it might be sold or its proceeds used beneficially by the objects of his bounty. Besides, I devise this estate for the sole use and benefit of my wife and child ; not for the benefit of her second husband, or those who had no claims on his bounty; and to enable them to enjoy it, the devisor placed -no limitation on its use for the benefit of his wife and child, and vested in the widow the power to sell a part of the realty for that purpose. The child was then only four years of age, and the testator no doubt thought that his wife, in raising and educating it, as well as providing for her own comfort, would require the use of all his estate save the realty that he expressly said should not be sold. The use of the prop
Did the testator contemplate the execution of a will
While gifts and conveyances to a wife and her children under the ordinary rule would create a joint tenancy, the courts, in the construction of such instruments, executed by the husband to the wife and children, are always inclined to construe the instrument as an estate for life in the wife, remainder to
The judgment below is reversed, and cause remanded for proceedings consistent with this opinion.