142 Ky. 14 | Ky. Ct. App. | 1911
Opinion of the Court by
Reversing.
In the fall of 1895; John H. Tanner, a resident of Ohio county, Kentucky, died, and at the November term of the county court for said county, the following was probated as and for his last will:
“State of Kentucky, County of Ohio, This September 26, 1895.
“In the presence of Almighty God and these witnesses, I hereby make my will as follows:
“I will my wife, Sarah B. Tanner 641-2 acres, more or less of land, the home farm, and I also will Sarah B. Tanner 87 acres, more or less. I also give her the right to sell 87 acres of land to William McLellan Tanner and Isaac H. Tanner, that she has the right to sell' it and no one can interfere. I also give the boys enough timber to repair their place, provided, they buy it. I as will her her one yoke of steers and cow and two yearlings. I also will will her one mare and colt, the mare to Isaac H. Tanner when he is 21 years old. I also will
“John II. Tanner.
“D. P. Moseley,
“J. M. Balpli.
“Given under my hand this September 26, 1895.”
He left surviving him a wife and three children, two sons and a daughter. The widow took all of the estate under the will and held it until she married Charles Christian, of Daviess county. Following her marriage she surrendered the sixtv-four acre tract, known as the home tract, to her daughter, who had theretofore married, gave up the eighty-seven acre tract to her two sons, and moved to the home of her new husband to live. A part of the purchase money remained unpaid on the eighty-seven acre tract, and the boys sold off a small portion thereof to pay this debt. After this was done they divided the balance between them.
The daughter and her husband took charge of the home tract, listed it for taxation, paid the taxes, and used it as they pleased. They borrowed money from three different persons and mortgaged the land to secure the loans. The mortgage debts matured, and, being unpaid,, suit was instituted to collect the debts and subject the land to their payment. When the suits were brought the daughter and her husband had rented the farm and moved out of the State, and, though warned of the nature and pendency of the suit, made no defense. Mrs. Christian filed a petition to he made a party, and asked that it he taken as her answer. The court permitted this to he done. In her answer she alleged that, under the will of her husband, she was the owner of the fee in said land, and that if the court should he of opinion that the will did not give her the fee, then, as widow, she was entitled to a one-third interest for life as dower. Or, if this should he denied her, then she had a lien on the land for the money which she had paid out in discharge of the debts of her husband. Her title and_ ownership were disputed by the plaintiffs, and upon this issue
Whatever rights appellee has in the land, she holds under the will of her husband. She had twelve months from the date of its probate to renounce the provisions therein made for her benefit and take under the law; but as she failed to exercise this privilege, she is now entitled to only such rights in the land as the will gives her. Hence, the claim for dower can not be considered.
And there is no merit in the claim that she has_ a lien on the land to reimburse her for money paid in satisfaction of debts against the estate.
The only question is, what estate passed to her by the will? She insists, a fee. Appellants say a life estate, subject to be terminated or defeated by her marrying again. The intention of the testator, as gathered from the entire will, must control. Testator had three children. Two of them were then under age. If he intended his wife to have the fee, then the latter part of the will is meaningless. If, on the other hand, as contended for by appellants, he wanted his wife to have the use of his entire estate so long as she cherished his memory and remained his widow, and trusted to her mother instinct to give to his children such protection and aid as she could and they needed, considering the size and character of his estate, then the latter clause of the will is given effect. Two ideas are prominently presented by this will: First, the testator wanted his wife to be comfortably provided for so long as she remained his widow; and second, upon her marrying again, he wanted his lands to go to his children, the girl to have the home farm, and the boys the eighty-seven acre tract. That his wife so understood and interpreted his will is evidenced by her conduct when she remarried. Up to that time she had held and used all of the land; from that time on she ceased to exercise any control over any part of it whatever; but, as directed by the latter clause of her husband ’s will, turned the home place over to her daughter and the other tract to her two sons. She was present when the will was being drawn, heard her husband’s instructions to the draughtsman as to how it should be drawn, and for more than six years after the probate was satisfied with the provisions. Doubtless she would never have asserted claim to ownership had her daughter not been either improvident or unfortunate, and
In adopting this construction, we have not overlooked that clause in the will whereby the wife is given power to sell the eighty-seven acre tract to the two sons. This is not an absolute or general power of sale, but a qualified right. Under it she might not sell to anyone but the two sous, who were to take the land upon her marrying again. If the will passed the fee to her, then her right to sell could not he qualified or controlled; but if only a life estate, wbicb was itself subject to be defeated by ber marrying again, then tbe power given to sell to her two sons is not inconsistent with the construction we have adopted. The effect of such conveyance, if she had made it, would have been but to basten the period of their enjoyment of the possession of said land in the event she had not married again.
Upon the marriage of the widow to her present husband, all ber interest in tbe land ceased, and her daughter became at once the owner of the home tract under the will of her father, and, as she has mortgaged it, it should be subjected to tbe satisfaction of these debts.
Judgment reversed and cause remanded for further proceedings consistent herewith.