203 Ky. 739 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming’.
This appeal presents the will of Wm. Freze, who died in 1894, for construction. This litigation is between his adopted daughter, Constance Mann, and his natural daughter, Tonika Froze, the first contending that by the will of William Freze she took a remainder in fee of one-half of his entire estate at the death of his wife, Marie Freze, to whom was given a life estate; or, if not that,.
“I give and bequeath to my beloved wife Marie Freze all my property of every nature and descriptiou real personal and mixed to have and to hold the same in fee simple with power to sell for reinvestment. ’ ’
While there are other clauses of the will which apparently limit the fee devised by the first clause, we think the whole is reconcilable with the contention of appellee, that Mrs. Marie Freze took a fee in all of the property of her husband William Freze, subject to be defeated as to two-thirds thereof by her remarriage. It is urged, however, by appellant that clause 1, devising a fee to the wife limited that estate by the expression “with power to sell for reinvestment.” We do not think such a construction can reasonably be placed upon this clause of the will. One who takes a fee by devise has, of course, power to sell the property for reinvestment or otherwise, and the words “with power to sell for reinvestment” were mere surplusage when added to the expression “in fee simple;” the devisee acquiring no rights through that expression with respect to the property which the fee simple title did not vest in her. The second paragraph of the will provides that in case the wife should remarry that she should take one-third of the estate in fee simple, the remaining two-thirds to g’o to the daughters, Constance and Tonika, equally. This created a defeasance upon the happening of which the wife’s fee estate in the whole was reduced to one-third. The third clause upon which appellant relies to establish her contention that the will vested in the wife a mere life estate, reads:
“I hereby nominate my wife Marie Freze as executor of this my last will and testimony without bond or surety with power on her part as executrix to sell and convey any or all my real or personal estate for reinvestment and her deed of conveyance as executrix shall pass a fee simple title to the purchaser.”
This last clause, like the expression “with power to sell for reinvestment,” found in the first clause of the
The chancellor sustained a demurrer, to the petition to which a copy of the will is attached, praying the will be construed so as to vest the wife with a life estate only in part if not all the estate, and dismissed the cause upon the failure of appellant to further plead. Thus the court held in effect that the will of William Freze devised to his wife a fee in one-third of-his entire estate and a defeasible fee in the remainder thereof; the other two-thirds passing to the children only on the remarriage of the wife.
Judgment affirmed.-