92 Ky. 641 | Ky. Ct. App. | 1892
delivered the opinion oe the court.
The will of William Allen was admitted to probate on the 15th of October, 1863.
By the first item of the testator’s will he gave to his. wife all of his estate, “ during her widowhood or natural life.” His children consisted of one son and five daughters, and the testator’s son is excluded from any share of his estate, because he had already received a full share of the same.
The will also provides that the five daughters, and the heirs of their bodies, upon the death or marriage of the testator’s wife, should take the remainder of the estate.
The tenth item of the will provides : “ I will that at the death or marriage of my wife I want the remainder of my property, not herein given off, to be equally divided between my five daughters, to-wit,” naming them, “ and I give the same to them and the heirs of their bodies.”
The eleventh item is as follows : “ It is further my wish and will that if any one of my daughters, named in this, my will, shall die and have no heirs of her body, such part as she or the heirs of her body would be entitled to under the will, I want, in such event, the portion that would be given to any one that may die, ■ as aforesaid, to go to the surviving daughters and the heirs of their bodies.”
The twelfth item provides : “ That should any more than one of my daughters die, having no bodily issue,
Article 1, section 8, chapter 63, General Statutes, provides : . “ All estates heretofore or hereafter created, which, in former times, would have been deemed estates in tail, shall henceforth be held to be estates in fee-simple; and every limitation on such an estate shall be held valid, if the same would he valid when limited upon an estate in fee-simple.”
The tenth item, supra, by apt words, wills to the five daughters such, estate as would, at the common law, be an estate tail, which is, by the Statute, supra, converted into a fee-simple title. The said- statute also provides that “ every limitation placed upon such estate shall be held valid, if the same would be valid when limited upon an estate in fee simple.” The limitation placed upon the devise by the eleventh item of the will would be valid as a defeasance if an estate in fee-simple had been devised, by so many words, to the five daughters. Hence, the eleventh item is a valid limitation upon the estate devised, which the law converts into a fee-simple estate. Now, the tenth item of the will having, as a matter of law, devised to the five daughters a fee-simple estate, to take effect on the death or marriage of their mother; and the eleventh item having made such an estate defeasible upon either one of the daughters dying without heirs of her body, and which expression, as is shown by the twelfth item, supra, means issue; and which limitation makes thq fee-simple estate defeasible upon the happening of the contingency of dying without issue (see Daniel v. Thompson, 14 B. M., 707), the question arises, to what time does the defeasance relate ?
The judgment is affirmed.