121 Ky. 82 | Ky. Ct. App. | 1905
Opinion by
Affirming.
B. C. Levi died in the city of Louisville, leaving a considerable estate, real and personal. He left no children, but was survived by his wife, Mary E. Levi. His last will, which was duly probated in the Jefferson County Court, contained these provisions:
“1. I desire that all my debts, of every kind, shall be paid in full.
“2. After my debts shall have been paid, I will and bequeath to my wife, Mary Ellen Levi, all of my personal, real and mixed estate of every kind and description, to have and enjoy all the days of her life.
“3. Previous to her death she may will or distribute to her relations and to my relations any property, real or personal, as she may choose or desire them to have. I am satisfied that she will act justly in this matter, but under no circumstances shall she be prevented or hindered in the enjoyment of any property or personalty that I may have at my death.
“4. I desire that my friend, Captain Gilmore, shall act as trustee for my wife without bond or security. ’ ’
Mary E. Levi did not, previous to her death,' distribute to the relations of herself or husband any of the estate he devised her; but in December, 1893, she died, leaving a last will and testament, which
It appears that Mrs. Levi left personal estate, in addition to what she received under the will of her husband, amounting to $4,800. There were four parcels of real estate, which had formerly been the property of the husband. It was all sold by appellee, the Fidelity Trust & Safety Vault Company, in pursuance of the power conferred upon it by Mary E. Levi’s will, with the approval of the chancellor of the Jefferson Circuit Court; and the proceeds, aggregating $12,818.34, together with what was left of her personal estate after satisfying the small specific legacies, were by it distributed to the persons named in her will. Among the parcels of realty thus disposed of was a tract of land of 76 acres lying in Jefferson county, which was purchased by the appellant, Lillie E. Levi. A deed of conveyance was made her therefor by the Fidelity Trust & Safety
Upon the payment by her of the purchase price she was given immediate possession of the land, and has ever since continuously remained in the undisturbed possession thereof. It appears, however, that in attempting to consummate a sale of the land, recently made to another, appellant was met by the purchaser with the objection that the will of Mrs. Levi did not pass to the Fidelity Trust & Safety Vault Company a good and sufficient title to the land, and that in consequence the deed from it as trustee to appellant did not convey to her a good and valid title, and because of these supposed defects in her title the purchaser declined to accept the deed tendered or to take the property. Thereupon appellant instituted this action to cancel the deed made her by the Fidelity Trust & Safety Vault Company, rescind the contract of sale, and recover of it the purchase price paid by her therefor. The chancellor adjudged that apjjellant received through the deed from appellee, Fidelity Trust & Safety Vault Company, trustee under the will of Mary E. Levi, a good and valid title to the land in controversy. Consequently the action was dismissed. Not dissatisfied with, but questioning, the correctness of the chancellor’s conclusions, and especial U his construction of the will of B. C. Levi, appellant asks of us a consideration and review of the question of title involved.
The objection to the title of appellant is bottomed up'on the theory that Mrs. Levi, in distributing to his and her relations the property devised her by the will of her husband, was limited to their next of kin, equally; whereas, the disposition made of it by her will, while equal (that is, giving one-half to his and the other half to her relations) was not to the next
"We think, if Mrs. Levi had died without exercising the power to distribute the estate conferred by the will of her husband, and a court of equity were called on to do so, it doubtless would hold that, as the right to select the relations to whom it should go was by the terms of the will personal to the widow, and she had failed to exercise it, the word “relations” should be construed as meaning the next of kin; and, the court not having the right to exercise the power of selection given the widow, the estate would be distributed to the next of kin as provided by statute. Our conclusion, therefore, is that the power conferred upon Mrs. Levi by the will of her husband is not coupled with an enforceable trust, because it imposed no obligation upon Mary E. Levi to will or distribute to the relations of herself and husband, or any of them, any portion of her deceased husband’s estate. That instrument merely provides that “previous to her death she may will or distribute any of the property.” She was not authorized to go outside of the class designated as “my relations” and “her relations,’’ and give or will the property to a mere stranger, or one not related to her or her husband, but might at any time before her death, by a gift or successive gifts, have disposed of any part of the property to any person or persons related by blood to herself or husband; and the title of the donee would have become valid and perfect, without regard to any subsequent disposition''of the remainder of the property. Therefore, the power conferred upon Mary E. Levi by the
Our attention has been called by counsel to the use by the testator of the word “to,” instead of the word “among,” in that clause of the will defining the power which may be exercised by his wife in the matter of disposing of the estate devised, and it is argued that, while possessed of the power to give “to” any person answering the description of “relations,” she was not required to make such gift “among all” of the relations. But, without relying upon such refinements of distinction, our examination of the authorities bearing upon the question under consideration has brought us to the conclusion that no better statement of the law controlling this ease can he found than is given in Perry on Trusts, sec. 256: “If the donee of the power, or trustee, is to select from the donor’s relations those to whom he is to give the property in the execution of the power, he may select from the whole circle of relations, whether near or distant.” (Sugden on Powers, p. 242.)
In Huling v. Fenner, 9 R. I., 410, the testator devised his property to his wife for life, “with full power to devise and bequeath the same, or any part thereof, to such of my relations of the Huling family as she shall in her discretion select.” The donee of the power gave the whole property to one person, who was a “relation” of the husband, but not his next of kin. It was insisted that the power of selection given the wife was limited to the relation who might be the next of kin at the testator’s death. In discussing this point in its opinion the court said: “This claim is supposed to he countenanced and
The principle is thus stated in Grant v. Lyman, 4 Russ., 292: “Where the author of a power uses the term ‘relations,’ and the donee does not exercise the power, ordinarily the court will adopt the statute of distributions as a convenient rule of construction and will give the property to the next of kin; but the donee of the power has the right of selection among the relations of the donor, although not within the degree of next of kin. It was said, also, the same rule has been applied to the personal estate, where the word ‘family’ has'been used in the place of ‘relations.’ * * * It is not necessary, therefore, to the validity of the gift and the power that the devise should be to-the next of kin to the donor, nor that he should bear the family name.”
. In our opinion the appellant, under the wills of B. C. and Mary E. Levi and by the deed from the Fidelity & Safety Vault Company, received a good and perfect title to the land purchased by her. Wherefore the judgment is affirmed.