187 Ky. 709 | Ky. Ct. App. | 1920
Opinion op the Court by
Affirming.
This suit was filed to obtain a construction of the will of P. Watson, who died a resident of Owen county. The clauses of the will involved are the third, the sixth and seventh, and they are in this language:
“3rd. I want my land, containing about 400 acres, sold and the proceeds to be divided equally between E. C. Watson and Sheffie Bridges and my two grandchildren, Sheffie Watson and Shafter Watson, Walter’s heirs. Now I have let E. 0. Watson have three thousand dollars. I hold his note for same. Said notes is to be equally divided, same as' the above land.
“6th. I want Shafter Watson to have my bank stock consisting of sixteen shares in the Corinth Deposit Bank,
“7th. I want all personal property 'and household and kitchen furniture sold and the proceeds divided equally between E. C. Watson and Sheffie Bridges and jxty two grandchildren, Sheffie Watson and Shafter Watson.”
Other clauses of the will, as well as codicils added thereto, provide for specific devises which are not in-' volved in this contest.
It is contended by plaintiffs and appellees, E. 0. Watson, individually, and as executor of the will, and Sheffie Bridges, the only surviving children of the testator, that he intended by clauses three and seven of his will to divide the property therein mentioned into three equal parts, giving to each of them one-third, and to the defendants and appellants, Sheffie Watson and Shafter Watson, the only children of a deceased son of the testator, jointly, the other one-third. Defendants deny that contention and say that they share the property mentioned in the two clauses of the will per capita with plaintiffs.
In regard to clause six of the will defendants contend that Shafter Watson was given the bank stock therein mentioned at the valuation of $1,800.00 as a cumulative gift, and in addition to what was devised to him by other clauses of the will; while plaintiffs insist that the value fixed on the bank stock in clause six was a pro tanto substitutional gift to Shafter Watson with which he should be charged on the payment of other legacies devised to him. The court below sustained the contention of plaintiffs with reference to each of the clauses involved, and adjudged that the proceeds of the farm mentioned in clause three, and those of the sale of personal property mentioned in clause seven, should be divided into three equal parts and distributed, one to E. C. Watson, one to Sheffie Bridges, and one to the two defendants, the testator’s grandchildren, and further adjudged'that Shafter Watson, in the distribution made to him, be charged with $1,800.00, the value fixed on the bank stock in clause six of the will. Complaining of that judgment, defendants prosecute this appeal.
It is likewise a rule well settled in the law pertaining to wills, that “Where the subject of a testamentary disposition is directed to be ‘equally divided,’ or to be divided ‘share and share alike,’ or where similar words are used which indicate an equal division between or among two or more persons, the persons between or among whom-the division is to be made take per capita, ‘unless a contrary intention is discoverable from the will.’ ” 40 Cyc. 1490.
This court has uniformly recognized and applied the foregoing rule, with its qualifications, as will appear from the cases of Lachland’s Heirs v. Downing’s Exor.,
It is conceded by both sides that the above authorities authorize a per capita division of the property whensoever it is directed to be divided “equally between” the devisees who share it, or where other similar expressions are used, such as “share and share alike,” “unless a contrary intention ia discoverable from the will.” In the Lachland, MeFatridge and Bethel cases, supra, it was held that the language employed by the testator indicated an intention that the devisees should take per stirpes instead of per capita which, as we have seen, is contrary to the general rule. While in the other cases cited from this court it was held that there was nothing in the will indicating a contrary intention. It will therefore readily be seen that each case must depend upon the peculiar language employed, and if there is nothing to indicate a contrary intention on the part of the testator,- a division of the property per capita will be directed. But if such contrary intention does appear, ihe distribution will be made per stirpes.
In this connection it might also be well to remember that unless there are plain expressions to the contrary, it will be presumed that a testator intended equal division of his property amongst those sustaining the same degree of relationship to him, not preferring those of a remote degree over those sustaining a nearer relationship. Cyc., supra, 1493, 1494.
It is also a rule applied in the construction of wills, as will be seen from the text in Cyc., supra, 1459, that “the word ‘heirs’ in a will primarily is used in its legal or technical sense and, unless the context shows a contrary intention, must be construed' as meaning all those, who, in case of intestacy, would be entitled by law to inherit on the death of the testator or ancestor named.” Again, in the same volume, 1492, it is. stated in the text that:
“As a general rule where a devise or bequest is made to ‘heirs,’ ‘heirs at law,’ or ‘legal heirs,’ the law pre
The inquiry, then, is' — what did the testator in this case mean by the language which he employed in the third clause of his will “divided equally between E. C. Watson and Sheffie Bridges and my two grandchildren, Sheffie Watson and Shatter Watson, Walter’s heirs,” and the same language found in clause seven of the will with the words “Walter’s heirs” omitted?' In the light of the foregoing rules for the construction of wills, we are convinced that it is more than reasonably certain that he intended that his two grandchildren, Sheffie Watson and Shatter Watson, should receive the portion of the property devised by those two clauses which their father, Walter Watson, would have taken as an heir of testator; i. e., that he constituted them one group who took substitutionally, as the representatives of their father, the portion which he would have inherited from the testator had there been no will. The will first names E. C. Watson as the taker of one division of the property, “and Sheffie Bridges” as the taker of another division, and in naming those who should constitute the third group in the division he says ‘ ‘ and my two grandchildren,” naming them, and then adds, -“Walter’s heirs.” Evidently he intended to include in the last group or class among which his property should be divided his grandchildren collectively, which is evidenced by the words, “my two grandchildren” as composing that .group or class. This construction is fortified by the additional words, “Walter’s heirs,” indicating that the testator intended his two grandchildren to represent, in sharing the devise, their father, Walter. This view is further strengthened by the rule, supra, that in using the word “heir” in his will the testator intended it to have its ordinary and usual meaning. There is nothing in the will to indicate a contrary inténtion. Viewed in this light, it is evident that the testator intended for his two grandchildren to take under the will what they would have inherited from their father had he been the devisee and died intestate.
There is nothing in the cases relied on by appellants .militating against this construction. In many of them
This brings us to a consideration of clause six of the will. There is a branch of the law of wills, which is sometimes referred to by the courts in construing them, known as “Cumulative and Substitutional Legacies.” It is thus stated in Page on Wills, section 798:
“If testator, by will, or by will and codicil or codicils, makes two or more gifts to the same person or persons, the question arises whether the second gift is intended by the testator to bev in addition to the first, or as a substitute for the first. If the second legacy is intended by the testator to be given in addition to the first legacy, the second is commonly spoken of as a cumulative legacy. If the second legacy is intended by testator to be given dn the place of the first, it is commonly spoken of as a 'substitutional legacy.’ ”
The same principle is stated in Alexander on Wills, volume 2, page 1010, sec. 682, and in the following section (683), on the same page, the author says:
“Whether legacies are cumulative, the second being in addition to the first, or whether they are substitutional, the latter being substituted for-or taking the place of the prior, is a matter of construction to determine the intention of the testator.”
Of course there is no room for construction where the intent is plainly expressed, or where language is employed plainly indicating the testator ’s intention. It is only when there is a degree of vagueness that construction, from a review of the entire will, is necessary It is admitted, as well as proven, in this case, that the sixteen shares in the Corinth Deposit Bank, mentioned in the sixth clause of the will, had a book value of $120.00 per share, when the par value was only $50.00 per share; and that the par value "of the ten shares in the First Na
A testator is presumed to have a purpose in the use of each expression he makes in his will, and words and phrases may not be discarded when construing a will unless it is plainly obvious that no meaning was intended to be attached to them. In this case it is by no means obvious that the testator aimlessly used, the expressions “at fifty dollars a share” and “at one hundred dollars per share.” On the contrary, it is perfectly clear chat he wanted his grandson to have the investment which he had made in those stocks, and which he required to remain so “until Shatter Watson is twenty-one years of age, the dividend to go to help clothe and school said Shatter.” He no doubt contemplated that the investment as thus made was perhaps better than any guardian for Shatter Watson could or'would make of any property which he might receive under the will. So he provided for the continued investment of a part of Shatter’s portion under his will equal to the par value of the stock devised, but he did not want his grandson to have his portion under the will reduced by any greater sum. In this view, the devise of the stock at par value was evidently intended to be a pro tanto substitutional one. This is the only conclusion which can be reasonably arrived at, in the light of the language employed, without discarding expressions to which the testator evidently attached some meaning.
Our conclusion is that the judgment appealed from was proper, and it is affirmed.