193 Ky. 25 | Ky. Ct. App. | 1921
Opinion of the Court by
Reversing.
John Palmer, the testator, died in January, 1920, leaving a last will and testament, which, was duly probated after his death. The will is as follows, viz.:
VI, John Palmer, considering the uncertainty of this life, and being of sound mind and memory, do make and publish this, my last will and testament, in the manner and form following:
“First. I give, device and bequeath to my beloved wife, Margaret M. Palmer, in trust for our granddaughter, and adopted daughter, Margaret Irene Martin, my house and lot, all furniture, pictures, souvenirs, dishes, all goods and chattels of what kind and nature soever. Also my half intrest in 25 acres of land situated in Caldwell county, Ky. Also all money I may have in bank, or invested otherwise, and insurance, if any of which I may be the beneficiary.
“To have and to hold all the above property to the sole and proper use of same, in trust for our granddaughter and adopted daughter, Margaret Irene Martin. And I name my wife, Margaret M. Palmer, administrator of the above property during her life. Upon the death of my wife, said Margaret M. Palmer, (should I be first diseased) all property, money, or insurance, &c., whatever*27 kind remaining I give, devise and bequeath to our grandauter and adopted dauter, Margaret Irene Martin, for her sole use and benefit.
“And I name W. J. Paulis of St. Charles and Eichard Palmer of Dawson Springs as guardians and administerators until said Margaret Irene Martin is 21 years of age.”
The appellee, Margaret M. Palmer, qualified as administratrix, with the will annexed, and thereafter she filed this suit seeking a construction of the will for the purpose of determining what estate, if any, she had under the will, in the property of the testator. Margaret Irene Martin, the appellant, was made a defendant in the suit. The. circuit court adjudged that the will “does devise and bequeath to the said Margaret M. Palmer, all the property mentioned in said will, to be her property to hold, use and isell and convey same as she may see fit,” and at her death, if any of the property then remains undisposed of, such portion shall become the property of Margaret Irene Martin. Prom the judgment, the guardian ad litem of Margaret Irene Martin has appealed.
At the outset, it must be said, if it should be conceded that the provisions of the will give to Margaret M. Palmer, in her individual capacity, ah' estate of any kind, the court has placed upon the will a construction of which no Avill is susceptible, as we apprehend. It has here adjudged that ishe has an absolute estate in fee in the property mentioned in the will. It has been continuously and uniformly held that if property is devised to one, generally or indefinitely, with a power to dispose of it as the devisee sees fit, it is a gift in fee and a limitation over of what remains undisposed of at the death of the deAdsee to whom an absolute estate is given, is void. So if the will does make a gift in fee of the property to Margaret M. Palmer, and such an estate, the court construes the will to give here with an unlimited power of disposition, is a gift in fee, the limitation over of what remained undisposed of is obliged to be void. Clay v. Chenault, 10 R. 779; Dulaney v. Dulaney, 25 R. 659; Trustees Presbyterian Church v. Mize, 181 Ky. 571; Becker v. Roth, 132 Ky. 429; Barth v. Barth, 18 K. L. R. 840; Moore v. Webb, 2 B. M. 282; Dills v. Adams, 19 K. L. R. 1169. Where a life estate is devised with a poAver of disposition, though unlimited, a limitation over of what remains undisposed of at the end of the life estate, is valid. Pedigo’s Extr. v. Botts, etc., 28 K. L. R. 196; Coates’ Admr. v.
The statement, which it is agreed, that several persons will make as to what disposition of his property the testator said that he was going to make before making the will, and what disposition he said that he had made of his property after making the will, cannot be considered as shedding any light upon the meaning of the language he did use in disposing of his property by the will. A last will and testament is required to be in writing, and the intentions of the testator are ascertained from the written instrument. If verbal declarations of a testator were admissible in interpreting a will, it can be readily seen that the proof of such declarations might result in an entire change of the intentions of the testator as expressed in the will, and he being dead would be unable to deny or explain any declaration which it was proven that he had made, and his actual intention as expressed in writing would be thwarted. Long v. Duvall, 6 B. M. 219; Allan v. VanMeter, 1 Met. 264; Stephen v. Walker, 8 B. M. 600; Jackson v. Payne’s Heirs, 2 Met. 567; Caldwell v. Caldwell, 7 Bush 515; McConley v. Buckner, 87 Ky. 191; Mitchell v. Walker, 17 B. M. 61; Mudd v. Mullican, 11 K. L. R. 417; McBrayer v. McBrayer’s Extx., 95 Ky. 475.
It is gathered from the petition and the will that Margaret M. Palmer was the wife of the testator, and Margaret Irene Martin was his granddaughter and only heir, and that the property mentioned in the will was his entire estate. It is not shown whether or not the wife was the owner of any estate of her own, or whether the granddaughter was or was not the owner of any estate. When from the language of the will the intention of the testator is ambiguous and difficult to ascertain, such actual ex-
*30 “Upon the death of my wife, said Margaret M. Palmer, (should I be first diseased) all property, money or insurance, &c., whatever kind remaining, I give, devise and bequeath to our grcmdcmter and adopted dawter, Margaret Irene Martin, for her sole use and benefit.” This sentence, however, does not contain any language which creates an intimation of an intention that he had or intended to devise anything to the wife. The language “whatever kind remaining,” necessarily refers to the diminution of the property that would follow the execution of the trpst which testator had created, and the -remaining words “I give, devise and bequeath, etc.,” was but a reiteration of his intention that the granddaughter should be the beneficiary of his property, and should receivé it free of the trust at the death of the wife, The last clause of the will provides a guardianship for Margaret Irene Martin, if her grandmother should. die before she arrives at the age of 21 years. Hence no repugnancy exists between the clauses of the will, all the parts of which must be made to harmonize in accordance with the intent of the testator, if it can be done without violence ’to its provisions. Moran v. Dillehay, 8 Bush 434; Coates’ Admr. v. L. & N. R. R. Co., 92 Ky. 263. Hence the express words of the will, and their literal import are not controlled by any other language used in it, and the intention of the testator must be necessarily ascertained from the literal import of the words. Griffith v. Coleman, 5 J. J. M. 600; Anderson v. Hall, 80 Ky. 91. Hence the testator devised all of his property to his wife as a trustee for his granddaughter to be held by the wife in trust for the granddaughter as long as the wife lived. At the death of the wife the trusteeship in her ceased, and the granddaughter became in control and possession of the property, and unless the death of the wife occurred before the granddaughter arrived at the age of 21 years, when Paulis- and Palmer were designated to be her guardians, until she should reach her majority, and no other estate than a trusteeship is given to the wife in the property.
The judgment is therefore reversed and cause remanded for proceedings consistent with this opinion.