185 Ky. 835 | Ky. Ct. App. | 1919
Opinion of the Court by
Affirming.
Tke grandfa.tlier of appellant, Silas H. Noel, who bore the same name, died, in the year, 1895. Previous to his death, on the 8th day of January, 1894, he executed his last will and testament, which was duly probated after his death. At the date of the execution of his will, he was the owner of a farm, which consisted of about four hundred and one acres, and which he had acquired title to. from one Proctor, and upon which he resided. Adjoining this tract of land, and between it and the Lees-
By the first, second, third, fourth and fifth clauses of his will, he disposed of his entire personal estate. The sixth clause of his will, and the construction of which is in controversy, here, is as follows: “Sixth: I give and bequeath to my wife and Maggie Jones, my daughter, the home place, known as the Proctor farm, containing about 425 acres and the remainder of the land and the house and lot on Wilkinson street, in Frankfort, Ky., and the house and lot on Clinton street, in Frankfort, Ky., and the lot at what is known as Thorn Hill, near Frankfort, Ky., to be held and used by them jointly until the death of my wife; and at the death of my wife, Maggie Jones is to have the home place containing about 425 acres, during her life, and at her death said place is to be divided as follows: One-half of said farm to her oldest child, Silas Noel Jones, and the remainder to be divided equally amongst all her children, including said Silas Noel Jones, and in the case of the death of any of her children during infancy, the others are to inherit his or her portion, and at the death of my wife, I give and bequeath the remainder of my land, outside of the homo farm, and the two houses and lots and the lot above mentioned, to my daughter, Clara Noel, during her life, and at her death to go to her son, Silas M. Noel. •
“I, also give and bequeath to my daughter, Clara Noel, Wifi? pf Johp C, Noel, my two houses and lots op App
After the execution of the will, the testator became the owner of a house upon Washington street, in Frankfort, and another lot in Thom Hill.
This action was instituted, among other things, for a construction of the will, and thereby, to have it determined, as to what property passed to each of the devisees under the willy as well as the rights of the devisees therein, respectively. The widow of the testator, having died, the trial court adjudged, that the will devised to Maggie Jones the Proctor farm, or “home place,” consisting of the original Proctor farm, and the small tracts of land owned by testator, which adjoin it on the west side, and bind upon the Leestown turnpike road, during her natural life, with remainder to her children. These small tracts contain 12.984 acre, .508 of an acre, .095 of an acre and about one-half of an acre, respectively. It was, also decided, that the will devised to Clara Noel, with remainder to her son, Silas M. Noel, the appellant, the house and lot on Wilkinson street, in Frankfort, the house and lot on Clinton street, and the lot in Thorn Hill, which testator owned, at the time of the execution of the will, but, that the house and lot on Washington street, and the lot in Thorn IIU1, which were acquired by testator after the making of his will, did riot pass to any of the devisees under the will, but, that testator died intestate as to those pieces of property and they passed to his heirs, in accordance with the laws of descent, and distribution, and from this judgment, the appeal, herein, was taken.
As to the two houses and lots upon Ann street, in Frankfort, it is conceded, that these were devised, by the will, to Clara Noel for life, with remainder to her son, the appellant, and were not in controversy, in this action. It is contended by appellant, that the court erred in adjudging:
(1) That the four small tracts' of land, adjoining the original Proctor farm upon the west, and abutting upon the Leestown turnpike road, were a part of the Proctor farm, or “home place” of the testator, and were a part of the devise to Maggie Jones, for life, with remainder
(2) That the house upon Washington street and the lot in Thorn Hill, acquired by testator, after the execution of the will, were undevised, and did not pass to Clara Noel, for life, with remainder to appellant, under the will.
These contentions will be considered in their order:
(a). The soundness or unsoundness of the first contention, because of which a reversal is sought, turns upon a determination of what the testator meant and intended, when he said in the will, that ‘ ‘ Maggie J ones is to have the home place, containing about 425 acres,” or rather what he intended that the “home place containing about 425 acres” should include. It is not overlooked, that in the second line of the sixth clause, when making the joint devise to Maggie Jones and his wife, the testator described the “home place,” as being “known as the Proctor farm,” and if there was nothing further, to shed light upon the testator’s meaning, it would seem, that he used the term, “home place” as meaning the Proctor tract proper, but, it will be observed, that he describes the joint devise to his wife and Maggie Jones, as the “home place,” known as the Proctor farm containing about 425 acres,” and when he came to devise the same property to Maggie J ones, to take effect, in possession, after the death of his wife, he described it as the “home place containing about 425 acres.” The Proctor farm, proper, contained only a fraction of an acre in excess of 400 acres, and since the testator owned and resided upon it for twenty or twenty-five years previous to the execution of his will, and made the purchase of it separately from his other lands, it must be assumed, that he was acquainted with the fact, that it only contained 400 acres, instead of about 425 acres. For the purpose of identifying real property, which is defectively described in a will, evidence may be considered, as to the lands owned' by the testator, the character of the lands and their condition, and how he used and designated them, and for the purpose of ascertaining the intentions of the testator, when he made use of the terms of description, although such evidence can not be invoked for the purpose of creating a devise, which the will does not
When he devised the “home place containing about 425 acres,” it is clear, that he intended to include more land in it, than the Proctor farm, proper, which had. only 400 acres, and it is equally clear, that he did not intend to include all of his lands adjacent to the Proctor
(b) The disposition of the house and lot upon Washington street, and the lot in Thom Hill, both of which were acquired by the testator, after the execution of the will, depends upon the determination as to the soundness of the second of appellant’s contentions. It is contended, that the words, “and at the death of my wife, I give and bequeath the remainder of my land, outside of the home farm ... to my daughter, Clara Noel, etc.,” in the concluding portion of the sixth clause, devised to her for life, with remainder to her son, the lots, which testator acquired after the execution of the will. This contention could have no support, except upon the theory, that, under the rule prescribed by section 4839, Ky. Stats., it 'does not appear, from the will, that the testator did not intend, that áll réal property, which he might acquire and own at his death, other than the “home farm,” should pass under the devise of “the remainder of my lands outside of the home farm,” to Clara Noel and her son. It will be remembered, that, under the rule of the common law, a will spoke and had effect as to real property comprised in it, as of the date of its execution, and that such property acquired by the testator after the execution of his will, did not pass under it. This rule was changed by the statute, which is now section 4839, Ky. Stats.,'which provides, that “a will shall be construed with reference to the real and personal estate comprised in it, to speak and take effect, as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.” Giving to this statute-all the effect, which it was intended to have, it is clear, that it does not affect any real estate, except such as is comprised in the will, and, after acquired real estate, does not pass under it, unless there is some clause, in it, broad enough to comprise or embrace the after acquired property, and'when read in connection with the other parts of the will, and-in the light, of the circumstances surrounding, the testa-:, tor, it does not appear, from the will,'that the testator’s.' intention was, that the after acquired'property .should, not pass under it. It can. not be -.disputed, that general words, in a will, descriptive .of property,.'and.where .the will purports to pass'all real property of a testator, or
The judgment is therefore affirmed.