22 S.W.2d 612 | Ky. Ct. App. | 1929
Affirming.
William Littell, who was survived by his widow and eight children, died a resident of Grant county in the year *252 1896, leaving a will dated April 13, 1896, which together with codicils dated June 11 and June 19, 1896, was duly probated in the Grant county court. In item first of his will he made provision for his wife, Mary Littell. The next provision is as follows:
"Item Second. I devise and bequeath to my son Gus Littell the land upon which he now lives, containing One Hundred and Fifty acres as described in deed from John N. Dickerson and wife and James F. Dickerson and wife to William Littell, dated December 23, 1895, valued at Three Thousand Two Hundred Dollars.
"I also give my son Gus, Nine Hundred Dollars in cash as an advancement this being debts which I have paid and am to pay, One note to Dr. R.H. O'Hara $325.00 and One note to Grant Co. Dep. Bank on which I am surety for him. This land is willed to Gus Littell and his bodily heirs, and should he die without bodily heirs then this land is to be equally divided among his brothers and sisters or their bodily heirs."
In items third to ninth, inclusive, he devised and bequeathed certain property to each of his other seven children, and provided in each instance that the land was willed to him and his bodily heirs, or to her and her bodily heirs, and that if he or she should die without any bodily heirs then the land was to be equally divided among his other brothers and sisters or their bodily heirs. The codicils have no bearing on the questions involved.
Gus Littell, the devisee in item second of the will of William Littell, died in the year 1929, survived by his widow, Jennie Littell. His will, which was duly probated in the Grant county court, appoints his wife executrix, and in addition to other provisions contains the following: "2nd. I give and bequeath to my wife, Jennie Littell, my entire estate both personal and real that I may possess at the time of my decease, consisting now of of 150 acres of land on the Sherman and new town pike and known as the William Dickerson farm, and 17 acres of land on the Sd. Sherman and Newtown Pike on which is a residence and known as the T.J. Spilman homestead The Sed, 17 acres is now owned jointly by me and my wife Jennie Littell." *253
This suit was brought by Ernest Littell and others, the brothers and sisters of Gus Littell, against Jennie Littell individually, and as executrix of the estate of Gus Littell, to quiet their title to the 150-acre tract of land on the Sherman and Newtown Pike known as the William Dickerson farm. The basis of the suit is that Gus Littell died without bodily heirs, or lineal descendants, and that the title to the land thereupon passed to plaintiffs under and by virtue of item second of the will of William Littell, and therefore the will of Gus Littell was inoperative to that extent. The chancellor sustained the contention of plaintiffs and rendered judgment accordingly. Defendants appeal.
Appellant relies on those cases holding that a limitation over after a devise of a fee is void. Cralle v. Jack son, 81 S.W. 669, 26 Ky. Law Rep. 417; Ray v. Spears, 65 S.W. 867, 23 Ky. Law Rep. 1338; Humphrey v. Potter, 70 S.W. 1062, 24 Ky. Law Rep. 1264; Clay v. Chenault,
Judgment affirmed.