192 Ky. 608 | Ky. Ct. App. | 1921
Opinion of the Court by
— Reversing.
“My entire estate, consisting of real and personal • property, notes for money, and all moneys from life insurance, cash on hand and all other things belonging to me, I will and bequeath to my wife, Ellen McCormick, during her lifetime, ¡with the right to dispose of it by will or deed and in such proportions as she may think best among our children. ’ ’
His wife, Ellen McCormick survived him' and in May, 1912, made her will, which, in part, reads as follows:
“The balance of the property owned and possessed by me at the time of my death I give, devise and bequeath to my four children in equal portions, but the portion which my son Thomas may be entitled to under tMs will shall be held in trust for him for a period of five years after my death. During said period he shall be entitled to the net rents, profits and income thereof, and I hereby appoint the Security Trust Company of Lexington, trustee, to hold, manage and control said property for my said son. ’ ’
Later Mrs. McCormick by codicil made the following provision:
“The portion which my son Thomas may be entitled to under this will shall be held for Mm in trust, and after paying the taxes, insurance, and making the necessary repairs upon said property, the balance of rents, profit and income therefrom shall be held by said trustee for a period of five years after my death, and during said period no part of said rent, profit or income shall be paid to my said son. After said period of five years, the trustee may pay to my said son of the rents, profit and income in hand and that may come to hand, as much as twenty-five dollars ($25.00) per month,_ if in the judgment of said trustee it shall be necessary for his support and maintenance. If my said son shall die unmarried and without lawful issue living at his death, then all of the property and estate he takes under this will shall go in equal portions to my other children.”
“Allof my estate, real, personal and mixed, legal and equitable, vested or contigent, and choses in action, which I may own or be entitled to at the time of my death. I give, devise and bequeath to my wife, Bettie McCormick, to have and to hold the same to herself and her heirs and assigns absolutely forever and in fee simple and to dispose of as she may desire.”
Appellant, Bettie McCormick, and her husband lived together until his death, childless, November 9, 1915. It therefore, appears that Thomas McCormick, the son of James and Ellen McCormick, died married but “without lawful issue living at his death. ’ ’ Primarily, this action was broug’ht to obtain a construction of the wills of James and Ellen McCormick, but now Mrs. Bettie McCormick is asserting her right to -one-fourth of the estate of Mrs. Ellen McCormick, which requires a construction of that part of the codicil which says: “If my said son shall die unmarried and without lawful issue living at his death, then all of the property and estate he.takes under this will shall go in equal portions to my other children.” It is the contention of the 'appellees, Alice Beinberger, et al., that appellant, Bettie McCormick, has no interest in or right to any of the property devised by Ellen McCormick to her son, Thomas McCormick, and by Thomas to appellant, because Thomas died “without lawful issue living at his death,” upon which contingency appellees insist, .the clause, “all of the property and estate he takes under this will shall go in equal portions to my other children,” as set forth in the will of Ellen McCormick, became operative. In other words, appellees contend that Ellen McCormick by her will intended that her daughters should have the portion of the estate devised to Thomas McCormick, unless he should have issue living at his death, and that while she used the words “unmarried and-without lawful issue” the expression constitutes but one condition, dying without laivful issue. In brief of counsel for appellees it is said: “Where the words ‘unmarried -and without issue’ are used and a man dies-leaving a wife but no issue surviving, the estate devised to the man is determined and passed by devise over,” and in support of this position the following old English
On tbe other hand, appellant insists that the will of Ellen McCormick, under which she claims, means exactly what it says and that the property devised to the son, Thomas McCormick, did not pass to or become vested in his sisters or their descendants until and unless the said Thomas McCormick died both unmarried and without lawful issue living at his death. It is appellant’s insistence that Thomas McCormick took a vested interest in the estate devised by Ellen McCormick subject to be defeated only by the death of the said Thomas McCormick both unmarried and without lawful issue living at his death and that both these conditions must concur in order for appellees to take the property. As Thomas McCormick was married but left no lawful issue living at the time of his death it appears that one of the conditions necessary to prevent the passing of the estate, under the devise over of Ellen McCormick to the other members of the family had taken place before his death, although the other, “lawful issue living at his death,” had not happened. If the condition of the will had been that Thomas McCormick could not take the property unless he married and had lawful'issue living at his death the case would be a very different one and he could, not take the property under such a devise, for he had- performed only one of the conditions, but the clause of the will under consideration is stated in the negative so as to give him the absolute title to the property unless- he died both unmarried and without lawful issue. The testatrix fixed the conditions upon which the estate should fail as to Thomas, and they may be stated as follows: “If my said son shall die unmarried . . . the property and estates he takes under this will shall go in equal portions to my other children,” unless “my said son shall die . . . (leaving) lawful issue living at his death. ” The converse of this, is, if my said son shall die married or leaving lawful issue living at his death the devise over -shall not take effect. In either of said events the estate is not to fail as to Thomas. The language of the will is such ■ as to invest Thomas with the estate unless he died both “unmarried and ¡without lawful issue living at his death.” If he married or if he left lawful issue living at his death the estate did not fail as
. All the rules of construction of wills are rested upon reason, and if the reason for the application of the rule does not exist the rule cannot be invoked to give a testamentary paper a meaning different from that which its language, when given its' usual and common meaning, would import. We, therefore, ask for what reason are we to hold that the word “unmarried” adds nothing to the meaning and effect of the clause “without lawful issue living at his death,” except the reason assigned in some of the old English cases to which we have made reference ? Is the word itself meaningless ? Or is its meaning embraced in and covered by the broader term “without lawful issue living at his death?” We think not. It is possible for one to have lawful issue living at his death although he have no wife living at that time. It is quite probable the testatrix used the term “unmarried” in the usual and commonly accepted sense — not having a wife at the time of his death — and not in the technical sense — not having once taken a wife. Testatrix probably contemplated the marriage of her son, the possibility of the wife’s death before the son, leaving issue at the death of the son, or testatrix may have been
There is some intimation if not argument that the word “and” should be read “or,” in the expression “unmarried and without lawful issue,” so that the devise over would take effect even if Thomas McCormick was married. There is much authority for the substitution of the word “and” for “or” (note to 25 L. R. A. (N. S.) 1153), but this is never permissible except in cases where it is plainly necessary to so read the testamentary paper in order to effectuate the intention of the testator as manifested from its entire context. 28 R. C. L. 226.
' The rule is ably and elaborately discussed in the case of Travers v. Reinhardt, 205 U. S. 428, where Justice Harlan, speaking for the Supreme Court, said: “It is contended here, as it was in the courts below, that the words in the above general provision, that ‘if any of my sons should die without leaving a wife or child or child
“Looking at all the provisions of the will and ascertaining as best we may the intention of the testator, we perceive no reason for interpreting the words used by him otherwise than according to their ordinary, natural meaning. ’ ’
After stating the general doctrine with respect to the substitution of the conjunctive for the disjunctive the court said:
‘ ‘ This general doctrine is not controverted, but there are other cardinal rules in the interpretation of wills which must be regarded. Mr. Justice Story, speaking for this court, said that effect must be given ‘to all words of a will, if, by the rules of law, it can be done. And where words occur in a will their plain and ordinary sense is to be attached to them, unless the testator manifestly ■supplies them in some other sense.’ Wright v. Dunn, 10 Wheat. 204, 239. ‘ The first and great rule in the exposition of wills,’ said Chief Justice Marshall, ‘to which all other rules must bend, is that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law. ’ Smith v. Bell, 6 Pet. 68, 75; Finlay v. King, 3 Pet. 346, 377. The same thought, in substance, was expressed by Lord Chancellor Eldon in Crooke v. Vandes, 9 Ves. 197, 205. Pie said that ‘where words have once got a clear, settled legal meaning, it is very dangerous to conjecture against that, upon no better foundation than simply that it is improbable the testator could have meant to do one thing by one set of words having done another thing, using other words, as to persons in the same degree of relation to him.”'
Another feature of this will was before this court in the case of McCormick v. Security Trust Co., 184 Ky. 25, but that opinion deals only with the right of the donee under the power created by the will of James McCormick to convey part of the real estate to one of the children in whose favor the power speaks.
We, therefore, conclude that by the expression “unmarried and without lawful issue,” used in the codicil, ■the testatrix intended for the devise over to the other children to become effective only in case Thomas did not marry and did not^leave surviving him either a wife or
Wherefore, the judgment is reversed for proceedings consistent with this opinion.
Whole court sitting.