51 Ky. 643 | Ky. Ct. App. | 1851
delivered the opinion of the Court.
By the will of Shadrack Penn, sen., admitted to record in 1831, after making a separate bequest to each ■of his eight children, and except in one instance, for the life of the legatee, and to be divided equally among the legatees, children at his or her death, stating in each case, with the single exception that the legatee had received the amount he devises his estate by the following clause, viz:,
*644 <* Ninthly, I give and bequeath to my beloved wife, Margaret Penn, all my estate,.real and personal, that possessed of during her .widowhood. Should she marry, then I desire that all my estate be equally divided among my eight children, or the heirs legally begotten of their bodies ; and should my dear wife die without marrying, the property is equally to be divided among my eight children or their heirs above expressed.”
The following is one of seven of the previous clauses which are substantially the same, except in name and amount, viz:
“ I give and bequeath to my daughter, Margaret Kelley, one negro George, and other property amounting to three hundred and ninety-six dollars fifty cents, during her natural life, then to be equally divided among her children; which negro and other property she has received of my estate heretofore.”
The sixth clause is as follows, viz :
“ I give and bequeath unto my son, Nimrod Penn, six hundred and two dollars, he being absent, and it is uncertain whether he is dead or alive. It is my request, should he ever return, or should he have a legal heir, then he or his heir, shall receive the above amount, except eighty-seven dollars, which he has heretofore received. Should it be clearly ascertained that he is dead. I desire that his part of my estate be equally divided among my other children, but if he has a legal heir or heirs, then they are to have his part of my estate.”
Margaret Kelley, the testator’s daughter, had a daughter, Margaret Ann Kelley, who, in 1842, married W. Robb, and had a daughter, Mary M., the present complainant. A son of Margaret Kelley is also spoken of, but if she had one he died in 1839, an infant and unmarried. In 1844 Mrs. Robb, the mother of the complainant, died before the death of her own mother, who, having married Belt in 1838, died in December, 1844. A short time before her death, she and her second husband, Belt, united in a deed transferring
If the complainant, as the sole descendant and heir •of one of the testator’s children, is entitled to any •interest under the will, she is to that extent entitled to •relief under this bill, and the decree cannot be sustained. It is therefore not absolutely necessary to determine whether she is entitled to the whole extent of her claim or not, and we shall consider the case without reference to the supposed death of Nimrod Penn, and as if he or his heir were claiming a share of the estate. In this aspect of the case, the sole question arises on the clause directing that on the death or marriage of the testator’s wife, his estate given to her until that event, “shall be equally divided between his eight children, or the hetrs lawfully begotten of their bodies.” It is contended that under this clause, the eight children had immediately upon the testator’s death a vested interest •in remainder, to take effect upon the happening of the «vent.referred to, that Margaret Kelly thereupon took a
If the word or, should, as contended for, be read and, that is, if the word and had been actually used, and the direction had been to divide the estate between the testator’s eight children and the heirs of their bodies, it might still have been questionable whether the words “heirs of their bodies,” should not be understood as
¡- But the will reads sensibly in its present form, makes a provision just and natural for the contingency evidently contemplated of some of the eight children dying before the division was to take place, and ma.y have a certain definite and legal operation according to its letter. There is, therefore, no ground for changing the word or into and; and the cases in which this has been done to avoid an absurdity, or to prevent the .destruction of the devise on account of uncertainty, or .to effectuate the obvious intention of the testator, .furnish no authority or precedent for making such a ■ change in the present case, if the consequence would ibe.to change the effect of the devise.
The words “ their heirs lawfully begotten of their bodies,” as applied to the testator’s children must mean the heirs of their respective bodies, or the respective heirs-of their bodies. And as there cannot be an. heir ■of a living person, they mean further the bodily .heirs of deceased children, or o.f such children as may be dead at the time referred to.. And if the devise is to them as heirs of the deceased child, it is a devise of his or her portion which 'they would take as heirs, and being to the heirs of the body, it is a devise to such descendants of the deceased child as would be his or her heirs. The words “ or
We are of opinion, therefore, that the proper construction of the clause being that the division is to be made between the testator’s children who may be living at the time of the event-referred to, and the heirs of the bodies of such as may then be dead, which is the only devise to any of them, the testator did intend to control the property until the happening of the event when the division was to be made, and that whatever interest any one, or all of his children may have had upon his death, was subject to that control, and therefore subject to be defeated or terminated by the death of such child before the time of division, and belonged, by the will, to the heir or heirs of the body of such decedent living at the time fixed for the division.
In a late edition of Williams on Executors, (3d Am., 4th London ed., page 1041,) the author says: “ Further, it seems to be now established that where there is a bequest to A, or his personal representatives,” or “to A or his heirs,” the word or, generally speaking, implies a substitution, so as to prevent a lapse; and he refers to the case of Gittings vs McDermot, (2, M. & K., 69,) where the bequest was as follows : j
Then, as the testator had a right to control his estate up to and at the period fixed for the division, and has done so, it follows that whatever interest any of his children may upon his death have had in his estate devised by this clause of the will, was subject to be defeated by the death of the child before the death or marriage of testator’s wife, when the existing heirs of the body of the deceasedchild would become absolutely entitled under the will. To the extent, therefore, of at least one-eighth of the estate devised by this residuary clause, the deed of Belt and wife was ineffectual as the event has turned out. And the complainant, as the sole descendent of one of the testators, eight children is entitled to one-eighth part, and consequently has a right to maintain this suit for partition and distribution. The dismissal of the bill was therefore erroneous. And as the question as to the interest intended for Nimrod Penn, or his heir, may depend upon facts not yet fully developed, we have not deemed it necessary now to decide, or even to investigate it.
Wherefore the decree is reversed and the cause remanded for further proceedings consistent with this opinion.