115 Ky. 520 | Ky. Ct. App. | 1903
Affirming on the original AND REVERSING ON THE CROSS APPEAL.
On the 19th day of October, 1882, W. B. Pepper made and executed his will. In the month of February, 1897, he died. His will was probated in that month in Fleming county, the place of residence of decedent. The will, so far as applicable to this case, is as follows:
“ist. I will and bequeath to my brother, Enoch S. Pepper, the home farm on which I now reside, known as the Drenan farm, also» I will and bequeath to the said Enoch S. Pepper all the stock that I may own at my decease together with all crops, all farming implements, household and kitchen furniture and all the pertenances belonging to said farm. Also I bequeath to the same brother (Enoch S. Pepper) all moneys together with all the notes that I have at my decease, after the expenses of my funeral is paid and after my just and honest debts are paid, should there be any,, and after the said Enoch S. Pepper shall have paid to my four nephews the following amounts:
“1st. I bequeath to Wesley Pepper, son of Joseph Pepper, $100. One hundred dollars.
“2d. A. Wesley Clark, son of Thomas Clark, One Hundred Dollars.
“3d. Wesley B. Allen, son of John E. Allen, One Hundred Dollars.
“4th. Wesley B. McRoberts, son of Asa McRoberts, One Hundred Dollars.
“These amounts are to be paid to my four namesakes of whom I have mentioned above by E. S. Pepper, out of the amount I have willed to him, he, the said Enoch S. Pepper,, is to have and to hold all the property that I have bequeathed to him (except the amounts above mentioned) except the home farm which he shall" hold his natural life*526 time and at his death one-half of the home farm shall go to my legitimate heirs, should there be any living at his decease, the other half of said farm, together with all the personalties that I have bequeathed to him, be at his disposal to will to whom he may see fit. To my brother, George F. B. Pepper, I will and bequeath the use of the ninety-five acres of land that I bought of him, the said George F. B. Pepper, a few years ago, that he is to have the use and all the proceeds of said ninety-five acres of land his lifetime, and at his death I want the ninety-five acres to revert back to my legitimate then living heirs. . . .”
Enoch S. Pepper qualified as the executor of the estate,' and on the 12th day of August, 1899, filed a petition in the Fleming circuit court against the heirs of the decedent, W. B. Pepper, for a settlement of the estate and for a construction of the will; the executor, Enoch S. Pepper, claiming that under.the will, and by a proper construction thereof, he was entitled to certain lands and personal estate; which will be hereinafter referred to, and that his brother Joseph Pepper was entitled to the balance of the estate.
The decedent, W. B. Pepper, was a widower and childless. His father and mother had died long prior to his death, and when he departed this life he left surviving him three brothers, to-wit, Enoch S. Pepper, Joseph S. Pepper, and George F. B. Pepper. He also left surviving him, in addition to the above-named brothers, three children of his deceased sister Elytian Clark, and also three children of his deceased sister, Nancy Umstattd, who are appellees herein. When decedent made and published his will, and also at the time of his death, he lived on what is designated in his will as the “Drenan Farm,” and his brothers, Enoch S. and George F. B. Pepper, who were bachelors, lived with him. When W. B. Pepper made and executed his
When Enoch S. Pepper instituted this action, George F. B. Pepper had died, and he instituted it in his individual capacity and as executor, and he construed the will to mean that the whole estate- passed to his brother, Joseph S. Pepper, and himself, excluding the appellees, the children of his sisters, from participating in the distribution of the estate; claiming that the language in the will, “legitimate heirs,” and “my legitimate then living heirs,” sustained him in such construction. He further claimed that under the will he was entitled to the whole of the Drenan tract of land of 103 acres, and also to the 111 acres of land added to it after the date of the will, and also by the use of the words in the will, “except the home farm which he shall hold,” etc., he claimed the 100 acres of land known as part of the old Pepper farm.
After the parties joined issues and had taken much proof and in the year 1901, Enoch S. Pepper filed an amended petition, claiming that he and his brother W. B. Pepper had formed a partnership in the year 1867, and that they, as partners, owned the Drenan farm, and the three parcels so added to it; and, afterwards, and during the same year, he filed another amended petition, in which he alleged that the partnership was formed in the year 1865, and that he
Appellants contend that there is an ambiguity in the will -as to the meaning of the words “home farm,” and that these words do not refer to the Drenan farm, the home of the testator, but were intended to mean the 100-acre tract, part of the old Pepper place, and took several depositions to prove their contention. We can not agree with appellants in this matter. While the will is inartistically drawn, it is clear that the words referred to mean the Drenan farm, the home of the testator. The first provision of the will contains these words: “I will and bequeath to my brother, Enoch S. Pepper, the home farm in which I now reside, known as the Drenan farm.” The proof shows that the testator resided on the Drenan farm from the year 1867 until his death. It was his home farm, and, in the language referred to, he expressly says the Drenan farm is
The appellant took the depositions of several witnesses, showing a partnership of some kind between testator and Enoch S. Pepper; statements of testator “that Enoch had as much interest and rights there . as he had;” that he (Enoch) owned half of everything there, etc. But it is not shown by any witness or by any pleading or exhibit when the partnership was formed, to what extent or length of time it existed, what capital, if any, either of them had put into the partnership, what they, or either of them, had drawn out of the firm, if anything, or any proof showing that Enoch S. Pepper ever had any capital to invest in the partnership; nor was there any attempt to show or explain by the proof or any pleading why Enoch S. Pepper suffered and permitted W. B. Pepper to take the conveyance of each and every piece of land in his own name, and so hold It until his death, without any reference in any deed or writing showing or even intimating that he held the property in trust, or otherwise than the fee-simple title in himself. And when we consider the further facts that Enoch S. Pepper lived with his brother, the testator, when the will was
We are of the opinion that the lower court erred to appellees’ prejudice in construing the will, in this: that Enoch S. Pepper took under the will the Drenan farm and the 111 acres added to it and purchased after the date of the will. We recognize the fact that a will should be construed to speak and take effect at the death of the testator, unless a contrary intention shall appear by the will, and that, if possible, a will shall be so construed as to give to every
It appears from the will that- the testator devised to Enoch S. Pepper the real estate referred to, and all of his personal estate, out of which his debts and funeral expenses, and four special devises, of $100 each, were to be paid; and it appears from the record that testator’s estate was bound as security on a debt to one Slack for appellee, Thomas Clark, and that Enoch S. Pepper paid this judgment. The court is of opinion that whatever may be realized on this claim should be returned to the estate of Enoch S. Pepper, for it was paid out of property willed to him. On the settlement of accounts of Enoch S. Pepper as executor, his
For the reasons indicated, the judgment of the lower court is affirmed on the original appeal, and reversed on the cross-appeal, and remanded for further proceedings consistent with this opinion.