22 S.W.2d 416 | Ky. Ct. App. | 1929
Affirming.
Elam Perkins died testate in January, 1929. His will was thereafter probated and controversy arose respecting its interpretation. This action was instituted by the executor and certain beneficiaries against the other beneficiaries for a correct construction of the will. Perkins was married, but had no children. His wife, mother, two brothers, and five sisters survived him. One sister had died in 1893, leaving as her heirs one child, James F. Howell, and one grandchild, Lucy Jane Wilson, the daughter of a deceased sister of James F. Howell. The will was a holographic one, and was written a few days before testator's death. The second clause provided that the wife should have one-half of the estate to do with as she pleased. In the same sentence it was also provided that the wife should have, if she wanted it, the home with its contents, the automobile, *84 etc., which were valued at $17,500. If the wife did not want the property last enumerated, it was to be sold. A special bequest was made for the benefit of Elam M. Perkins, Jr., a grandnephew and namesake of the testator. Special provision was made also for one sister, Mallie, who was to have testator's interest in the old home place and the sum of $500 in cash. A brother, A.L. Perkins, was to have $1,500, "for favors rendered me." A trust fund of $10,000 was set apart for the benefit of testator's mother during her life, and at her death it was to be "divided equally between my brothers and sisters." The sum of $500 was left to his nephew James F. Howell, and a like amount to Lucy Jane Wilson, niece of Howell, with the provision that if either of them died before testator, the surviving one should have the $1,000. The will provided that the remaining one-half of the estate should be divided equally among the testator's "surviving brothers and sisters or their heirs." The circuit court held that if the widow elected to take the home and contents and other personalty mentioned in the will, it should be charged against her. The widow had an option of taking the house and contents, automobile, etc., but if she did so it had to be charged against her one-half of the entire estate at the valuation of $17,500 fixed by the will. If she elected not to take the property, it was to be sold and added to the total value of the estate. The circuit court further held that James F. Howell and Lucy Jane Wilson, as the only heirs of the deceased sister of Elam Perkins, participated with his living brothers and sisters in the distribution of the one-half of the, estate left to them. The appeal is prosecuted by the widow and brothers and sisters, contending that the widow should take one-half of the estate and the home and contents, and that Lucy Jane Wilson and James F. Howell are excluded from sharing in the other one-half of the estate to be distributed to the surviving brothers and sisters, or their heirs.
The argument as to the rights of the widow involves a determination of the question whether the optional devise of the home is supplemental or substitutional; that is to say, whether it is in addition to the devise of one-half of the estate, or substituted for the portion thereof to the extent of $17,500. The question is not entirely free from difficulty. The intention of the testator is the controlling consideration in construing a will, and, as has been decided in Prather v. Watson,
It is earnestly argued for the appellants that the words "surviving brothers and sisters or their heirs," as used in the will when devising the other half of the estate, did not include the children of the deceased sister of Elam Perkins. To meet the contention that by including "their heirs" the testator meant to embrace the heirs of his deceased sister, it is suggested that those words were intended only to include the heirs of any brothers or sisters surviving the testator, but dying before the date of distribution, or possibly it referred to those living when the will was written, who might die before the death of the testator. In Ruff v. Baumbach,
The considerations suggested, and the authorities cited, lead us to the conclusions reached by the circuit court.
The judgment is affirmed. *87