133 Ky. 406 | Ky. Ct. App. | 1909
Opinion op the Court by'
Affirming.
One R. B. Rice died in Boyle County, Ky., the place of his residence, leaving a will which was executed in 1896. He left a widow and two children. By his will he made provisions for the settlement of his debts and for the benefit of his wife, which she after-' wards renounced, and then devised to his two boys, John Andrew and James Howard Rice, certain lands. In making these bequests, he used the following language: “I will to my son, John Andrew Rice, the east end of my land with general boundary as follows: (Describing it) containing two hundred and fifty acres. I will to my son Joe Howard Rice the balance of the Ephram Smith tract of land containing 190 acres and the Bias Smith tract of 144 acres. If either should die without legal heirs, then his portion shall go to the other, or his children, if any. Neither shall have power to sell and convey except the proceeds shall be invested in other real estate.” These sons married. John Andrew is alive and has living children. James Howard is dead. He left a widow, M. B. Rice, one of the appellants, but left no
Appellants contend: That James Howard Rice took the fee-simple title to the land devised to him; that the words, “if either should die without children” referred to the death of either in the lifetime of their father, the testator; that he outlived his father, and therefore took the absolute title. We cannot agree to this construction of the will. The testator had reference to the death of either taking place at any time, either before or after his death. This is evident, according to the sentence immediately following limiting their right to. sell the land to the extent that if they sold it they were required to reinvest the proceeds in other real estate. The will speaks from the date of the death of the testator, and they did not own the land or have any power to sell it until after the death of their father.
In the case of Harvey v. Bell, 118 Ky. 512, 81 S. W. 671, 26 R. 381, the court undertook to classify
Under these authorities the court .properly adjudged that John Andrew Rice took the land under his father’s will. But under the opinions cf this court in the cases of Northcut v. Whipp, 12 B. Mon. 65, Fry v. Scott, 11 S. W. 426, 10 R. 1013, and Webb v. Trustees of First Baptist Church, 90 Ky. 117, 13 S. W. 362, 11 R. 926, the court wrongfully adjudged that M. B. Rice, the widow of John Howard Rice, had no dower interest in the land. These cases expressly determine that she has such an interest. In the case of Fry v. Scott, supra, the court, after quoting the statute with reference to dower, said: “In Northcut v. Whipp, 12 B. Mon. 65, it was expressly' held that the widow of a husband who had a defeasible fee in land was entitled to dower. In that case the question was fully considered and the rule laid down, which has since been adhered to, that in’ all cases where the husband is seized of such an estate in land as that the issue of. the wife may inherit, if any she have, as heir to the husband, the widow is dowable out of such estate.” Appellee’s counsel presents a strong argument and asks that the court overrule the decisions referred to. There may be a great deal said upon either side of the question, which is a very close one; but the construction of the statute giving the widow, in such cases, a dower in
For these reasons, the judgment of the lower court-is affirmed as to appellants Tunis, the administrator, and Garr, Scott & Co., and reversed as to appellant M. B. feice, and remanded for. further proceedings consistent with this opinion.