89 Ky. 58 | Ky. Ct. App. | 1889
delivered the opinion op the court.
This is an action to enforce a contract of purchase, made between George Dougherty and the appellant. The defense is, a want of title. At first impression, it would seem that the testator, in the devise made to his two children, intended to invest them with the fee in the land; but a more careful consideration of the testamentary paper would necessitate the violation, not only of well-recognized rules of construction, but require the court to pervert the meaning of the word •children, in order to reach such a conclusion. The testator owned a small tract of land, containing about one hundred and fifty acres, and died, leaving surviving
Where the devise is to A and his children, the children take as purchasers, and the question generally is, whether A is vested with a life estate, or only holds a joint interest with his children. The. word heirs, or heirs lawfully begotten, embrace all the descendants of the devisee or grantee; but the word children embraces only immediate descendants, and when used in a deed or will, the children take as purchasers, and are vested, if living, when the devise is to one and his
He devises one hundred acres of the land to his daughter in the same way, to her and to her children, the heirs of her body, and burdens the devise with the payment of a debt of eight hundred dollars. Now, this burden rests on the entire devise, and not alone on the interest the daughter is to take; and if the devise to George, which is now in controversy, was erased from the will of the testator altogether, and only the one devise appeared, and that to the daughter, it would be held at once that the purpose of the testator was to secure the land to the daughter and her children, and that she had but a life estate.
So the devise to the son, by which his estate is limited, should not be enlarged upon the mere probability that the testator intended to give him the fee. It is true the testator, in speaking of the devises to his children, says, when alluding to the boundary, ‘ ‘ the land I have devised to George;” “the land I have devised to my daughter;” but such expressions are not incon-
The will was evidently written by one of more than ordinary intelligence, embracing in a few words the devise of the whole estate, and the draftsman as well as the testator must have had some reason for inserting the word children, and to divest them of all interest would tend to defeat the intention of the testator.
The judgment is, therefore, reversed, with directions to dismiss the petition or cancel the contract if the •appellant desires it.