168 Ky. 559 | Ky. Ct. App. | 1916
OPINION OF THE COURT BY
— Affirming.
Henry S. Beed, a resident of Fayette county, died in the year 1911, leaving a will which was dated January 4, 1910, and duly probated by the Fayette county court. After authorizing his executor and trustee to sell and convey all of his property, and making certain specific bequests, which are not material to this controversy, the; will is as follows:
*560 “6th.. All of the residue of my estate, real and personal, I desire my executor to hold in trust for the benefit of my nieces and nephews hereinafter named, paying to each of them that survive me for fifteen years after my death their equal portion of the income therefrom in semi-annual installments. At the end of said fifteen years all of my real and personal estate shall he sold by my executor and trustee and divided equally among my nephews and nieces and their children. My intention is that all my nephews and nieces and their children shall take an equal portion of my estate. The nephews and nieces who take under this will are: Mrs. Mattie Simpson Dunlap, Houston, Texas; Mrs. Lilla PI. Hoggin, El Paso, Texas; Mary Simpson, Eagle Pass, Texas; Mrs. Catherine Bowman Banks, Columbus, Georgia; Joseph J. Reed, Knoxville, Tennessee; S. P. Simpson, Eagle Pass, Texas; William R. Bowman, Payette County, Kentucky; Bush Bowman, Guthrie, Oklahoma; Andrew Bowman, Payette County, Kentucky; John B. Bowman, McIntosh, New Mexico; Robt. Lee Bowman, Bellaire, Ohio; and Ellen Douglas Payne, Lexington, Kentucky.
“7th. No charge shall be made by my executor to any of the above named devisees for gifts or advancements made during my life.
“8th. I hereby appoint the Security Trust Company, of Lexington, Kentucky, my executor and trust of this will: ’ ’
Plaintiff, Lizzie Gr. Lewis, is the ■ only daughter of Elizabeth Reed Lewis, who was a niece of testator and who was dead when the will was written. The executor and trustee declined to recognize her as one of the de-visees under the will. Claiming that the will shows on its face that the testator clearly intended that all of his nephews and nieces and their children should share equally under clause 6 of the will, and that, by mistake, she was not named as one of the devisees, plaintiff brought this action to have the will reformed and construed so as to give her an interest in the devised estate. Próm a judgment denying her the relief prayed for, she prosecutes this appeal.
Strictly speaking, courts of equity have no power to reform a will, as that term is used with respect to other instruments. It is only where the mistake in the will is apparent on its face and the court is able, by a due construction of its terms, to ascertáin the means of correct
Judgment affirmed.