101 Ky. 738 | Ky. Ct. App. | 1897
delivered the opinion of the court.
On the 9tb of July, 1866, James Lynn made Ms will. On tbe 14th of August, 1868, it was probated in the Pulaski County Court. The clause in his will disposing of his estate is as follows.:
*739 “I give to my daughter-in-law, Polly Jane Lynn, and her children, wife of my son, Joseph Lynn, my tract of land on Cliffy creek, Pulaski county, Kentucky, containing one hundred acres, sold and deeded to me by John Lay, the same on which I now live, in consideration of the love and affection I have for her and in consideration of her kindness to me heretofore. I have heretofore given to and made such provisions for my other children as I am able to do for them. I require of her to see that I am buried in a decent and Christian-like manner after my death.”
It will be observed that he devised to Polly Jane Lynn, wife of his son, Joseph Lynn, and her children a certain tract of land. It appears from the language used in the will that his son Joseph was then living, and as it does not appear in the record that he has since died, presumably he is the father of the three children hereafter named who were born after the death of the testator. Nt the death of the testator Polly Jane Lynn had five children, afterwards there was born to her three children, one of whom was the appellant, Milton G. Lynn. The court below interpreted the will so as to give the land to the mother and the five children who were living at the death of the testator. If the three children born after the death of the testator are entitled to anything, they did not acquire it by inheritance or by any provision of the statute, as the father was living at the death of the testator and he was excluded by the terms of the will like the other children from participating in his estate. Nor would they any way have taken by inheritance anything from the grandfather’s estate as their father was living at the death of the testator. So whatever rights
In Williams v. Duncan, 92 Ky., 125, it appeared that the testator willed certain property interests to his grandchildren. The question arose as to whether the grandchildren who were born after .the death of the testator participated in the estate devised. The court held that they did not, except those bom wdthin the period of gestation, because the will manifested a purpose to exclude them from participation. It is inferentially determined in that case, had no intention been manifested by the provisions of the will to exclude them, the children born after the period of gestation wmuld have taken the same as those who were living at the testator’s death. In Webb v. Holmes, 3 B. M., 404, the property was deeded to a mother for life, and the remainder to her children, the court held that those of her children who were born after the deed acquired the same interests in the property as those who were born before.
The judgment is reversed for proceedings consistent with this opinion.