194 Ky. 231 | Ky. Ct. App. | 1922
Opinion op the Court by
Reversing.
This action wa-s instituted by the appellant, Brummal Penick, as executor of tbe will of B. W. Penick, and in Ms own rigbit as a devisee under tire will, for a construction of certain provisions of the will, and for the advice of the chancellor, toucMng the distribution of the estate. There is nothing in the record which indicates the extent of the estate of the testator, except in a limited way, but
“Item 5. To my daughter, Mary P. Lewis, who has been so faithful and careful and loving’ to me, I give my brick storehouse in Greensburg, Ky., same deeded me by Levi M. Moore and wife, and charge her for same twenty-five hundred dollars, $2,500.00. I also give her my one-tenth interest 1/10 in the brick storehouse on Sixth street in Louisville, Ky., and charge her for same $400.00. I also give her one-half of my household and kitchen fur*233 niture, beds and bedding, tableware, bric-a-brac, silver, pictures, &c., left remaining after the said Edwina Hobson and Betty K. Alcorn have exercised their option under the devise made them in item 3rd of this will, and charge her for same $100.00.
“I also give her one full one-half of all my personal estate of every character which I may own in remainder. . . . I also give her, not to be charged, all provisions I may have on hand.
“Item 6. To my son, Brummal Penick, I give and bequeath my land in Adair county, Ky., part of a former farm of my uncle, I. W. Ingram, deeded me by his widow, M. M. Ingram, containing about 60 acres, and charge him for same fourteen hundred dollars, $1,400.00. I also give him the land I own partly in Adair county and partly in Green, adjoining land of M. M. Ingram, Mr. Squires, Mr. Curry, Mr. Handy, and probably others, and charge him for same $400.00. I give him one-half of household effects, &c., as given my daughter, Mary P. Lewis, & charge him $100.00.
“I also give him such hogs as I may leave and charge for same $100.00.
“I also give him one-half of the remainder of my estate, in all making him and my daughter, Mary P. Lewis, equal in my estate, and do not want eitherof them charged with anything I may have given them in any way heretofore.
“Item 7. ... I appoint Brummal Penick, my son, my executor for my estate, giving him full power to collect and settle such claims as I may have uncollected as he may deem best to collect the same, not desiring that he overpress any who may be owing me. I desire that he be not required to give bond, and direct that no inventory or appraisement be made of my estate, only I wish him.to make his sister, Mary P. Lewis, from time to time a full showing of what may come into his hands, and disposition of same, and also direct that no compensation be allowed Turn for executing this trust, only his necessary expenses paid by him in connection with the estate.”
On the 4th day of January, 1918, the testator added a codicil to the foregoing will, the portion of .which that is pertinent to the issue here is as follows:
“By way of codicil to the foregoing will, I here add to and constitute a part of same, the following:
*234 “The lands I devised to my son, Brummal. Penick, in the foregoing will, I have since sold and hereby vacate said devise of land to him and cancel the charge made against him for same, and I here devise him, the said Brummal Penick, a tract of land in Adair county, Ky., bought by me of heirs and widow of W. A. Taylor, containing 49 3/8 acres, and charge him for same, $500.00.”
On April 30, 1918, another codicil was added to the will, the pertinent portion of which is as follows:
“By way of codicil further to foregoing will, I state that since making foregoing codicil devising Brummal Penick 49 3/8 acres of land in Adair county, I have sold said land, and hereby' set aside the devise and charge of $500.00 therefor.”
The parties entered into a stipulation to the effect that the real estate which was devised to Mary P. Lewis was, at the time of the testator’s death, of the value of $8,000.00, and agreed that the fact as stipulated could be considered as evidence.
The appellant averring (and this is undenied) that the testator at the timle of his death, did not. own any real estate, other than that which was devised to appellee, and that he did hot receive any real estate under the will or otherwise, and further that there was devised to him and appellee, each, an equal portion of the estate, and there would be a sufficiency of the personalty, .after the payment of specific devises and costs -of administration, to equalize them, and being in doubt as to the construction to be placed, upon the fifth and sixth clauses of the will, and the codicils, so far as they relate .to the devises made to appellant and- appellee, asked the chancellor to determine and advise him whether the testator intended that each of them should receive an equal portion of the estate, and in determining the amount which each of them should receive from the estate, whether appellee should be charged for the real estate devised to her the sums at which the testator valued it and charged it in the will, or should she be charged the value of it at the time of the testator’s death.
The judgment was to the effect that the testator died testate as to his entire estate, real and personal, and that after the payment of certain specific devises, there was devised to the appellant and appellee, each, a full one-half of the remainder of his personal property without any
There were never any two wills alike, in as much as there were never two testators alike, with like estate and surrounding circumstances, and hence each will depends for its construction upon its own language, and. the circumstances surrounding e^ch testator, so far as they will shed light upon the language used. It is trite to say that the universally established principle for the construction of a will is to ascertain the intention of the testator, and to give effect to that intention, unless it is contrary to the established law, or an accepted public policy. Watkins v. Bennett, 170 Ky. 464; Bayless v. Prescott, 79 Ky. 252; Hegan v. Netherland, 141 Ky. 680; Patrick v. Patrick, 135 Ky. 307; Buschmeyer v. Klein, 139 Ky. 124, and innumerable others. The intention of the testator must be ascertained from the language in which he expresses that intention, and not from outside circumstances and facts from which a will might be manufactured or language, that might have been used, but was not. Bedford v. Bedford, 99 Ky. 284; Guthrie v. Guthrie’s Exor., 168 Ky. 805; Shields v. Shields, 185 Ky. 249; Wickersham v. Wickersham, 174 Ky. 608. In ascertaining from the language used, the intention of the testator, the entire will must be considered, and if there be codicils, they are to be considered as a part of the will. Deppen’s Trustee v. Deppen, 132 Ky. 755; Hannah v. Prewitt, 153 Ky. 310; Gray v. Garnett, 148 Ky. 34; Barber’s Extr. v. Baldwin, 128 S. W. 1092. When there are ambiguous clauses or terms, to ascertain the proper interpretation of them, the motives which can be reasonably assigned to have actuated the testator, the purpose of his making the will, the rela
When the testator gave the brick storehouse in Greens-burg to appellee, he accompanied the devise with the language, / ‘ and charge her for same two thousand five hundred dollars, $2,500.00.” The devise to her of his one-tenth interest in the house in Louisville is accompanied by the statement, “and charg’e her for same $400.00.” The gift of one-half of the contents of his dwelling to her is with the accompanying condition, “and charge her for same $100.00.” When he devised to her all of the provisions he had on hand, he was at pains to say “not to be charged.” These terms show clearly that the testator understood their use, and indicate beyond question the purpose and intention of the testator, that the appellee should be required to account to his estate in a settlement and distribution of it, the sums at which the testator charged the devises, and that the language used was not a mere statement of what in his opinion was the valuation of. the property mentioned. He furthermore devised the land in Adair county to appellant, and accompanied that devise with the words, “and charge him for same fourteen hundred dollars, $1,400.00.” The land partly in Green and partly in Adair, he gave to appellant, accompanied with the words, ‘£ and charge him for same $400.00.” He used similar language with reference to the devises to appellant of one-half of the household goods and the hogs, requiring that he be charged $100.00 for each of such devises. When testator sold the lands
In addition to the force of the words, showing that the specific devises were to be accounted for to the residuary estate, as indicating, that the two residuary legatees should share equally in the estate, the testator makes use of the following significant language, in item 6, of his will. After devising to appellant the lands, half of the household effects, and hogs; the will says: “I also give him one-half of the remainder of my estate in all making him and my daughter, Mary P. Lewis, equal in my estate, and do not want either of them charged with anything I may have given them in any way heretofore.”
In accounting for the property devised to the appellant and appellee, the amount fixed in the will to be charged for it should prevail. The sums, at which, they should account for the property is as much a part of the will, as any other part of it. The case is not, as one where a portion of the estate is undevised, and it is attempted to distribute the unclevised portion so as to equalize persons not devisees, with those who are. In this instance, the entire estate is disposed of by the will, and the principles applying to arrive at equality where a portion of the estate is undevised, cannot be invoked since undevised estate is not disposed of under a will, but by the requirements of a statute, and since one claiming under a will can not at the same time claim against it. In determining the snm, which the appellant and appellee, each, should receive from the estate, the specific property re«eived by them under the will, should be charged to him or her, at the sum fixed by the testator in the will. Duff v. Duff’s Exor., 147 Ky. 641; Bowles v. Winchester, 13 Bush 16; Ecton v. Smith, 6 K. L. R. 216.
The judgment is therefore reversed and cause remanded, for proceédings not inconsistent with this opinion.