194 Ky. 96 | Ky. Ct. App. | 1922
Opinion op the Court by
Reversing.
The sole question involved in these appeals is the proper interpretation of clause 9 of the will of Edward Cosby, deceased, and of clause 7 of the will of his wife, Mary J. Coshy, deceased. The two clauses are in sub
At the time of the death of each of the makers of the two wills they were the parents of two children, Lilly Cosby Roy, and Emma R. Cosby, who has since married a man by the name of Ross. The daughter, Lilly Cosby Roy, and her husband, W. D. Roy, were the parents of four children, Lamar D. Roy, Ed. 0. Roy, Lilly R. Win-dell (nee Roy) and Emma Roy Richardson, who were each above the age of 21 years. On August 27, 1913, Ed. C. Roy, with his brother, Lamar D. Roy, attempted in writing to pledge their interest in the portions of the personal property devised to Emma R. Cosby (by clause 7, supra, of the will of Mrs. Cosby, and by clause 9 of the will of Edward Cosby) to George A. Devoe, Jr., as security for a note that day executed to him by W. D. Roy, father of the pledgors, for the sum of $12.600.00 payable five years thereafter. The note, as well as the written pledge, was duly assigned and transferred to the appellee and plaintiff below, Arthur P. West, Treasurer, who filed this action, seeking to subject the personal property so pledged to the payment of his debt, as well as to foreclose a lien on other real estate, but which latter is not involved in this appeal. Emma R. Cosby Ross has no children nor has she ever had any. After the execution of the pledge, and before the filing of the action, Ed. C. Roy died leaving as his only heir and child the appellant. Laura Roy, an infant under six years of age. During the progress of the cause appellants, Emma Richardson and Lilly Windell, sisters of Ed. C. Roy, and Laura Roy, by her mother and next friend, Hannah Roy (widow of Ed. C. Roy), tendered and offered to file their intervening petitions in which they alleged, in substance, that Ed. C. Roy, under clauses 7 and 9 of the wills of his grandmother and grandfather, took only a contingent interest in the property referred to in them, or at most only a defeasible interest therein subject to be defeated by his death before that of Emma R. Cosby, and that he having died leaving
Much discussion is indulged in and a large portion of the brief is taken up with an'effort to show that the interpretations by this court of the provisions of section 2064 of the Kentucky Statutes, as contained in the cases of Harrington v. Gibson, 109 Ky. 752, and Smith v. Miller, 20 K. L. R. 910, fix the right of the .infant, Laura Roy, to the relief which she soug’ht by her intervening petition, that the words “child or children” in the clauses referred to include a child or children of a deceased child referred to in the clauses of the wills, but whether those cases are sound and should be followed we feel that we need not determine, since we have concluded that there exist other grounds upon which the court should have permitted the petitions to be filed.
There has been in the past much hairsplitting reasoning and metaphysical distinction with the courts, including this one, between a vested and a contingent remainder, and it is sometimes difficult to designate the class to which the particular interest belongs. There is likewise confusion in some of the opinions, including some from this court, growing out of a failure to distinguish between a vested remainder and a defeasible one. It is sometimes said without qualification, but inaccurately as we think, that a vested remainder interest may be sold or subjected to the debts of the owner, and that those to whom it passes will obtain an absolute title. But, as we shall see, this is not true where the remainder, though vested, is a defeasible one, and its owner dies before the happening' of the event when the property is to come into enjoyment and the title made absolute. If the owner of the remainder should live beyond that time and the conditions provided by the instrument creating the estate were then such as to permit him to take, his vendee, or those who otherwise legally obtained his interest, would own the absolute title.
We have before seen that the property involved in this appeal is personal property, and whether a contingent remainder interest in that class of property may or not be sold is a question that, to say the least of it, is' involved in some doubt; though, section 2341 of the statutes, as frequently construed by this court, permits the sale of a contingent remainder interest in real property. But the cases referred to, especially the Vandyke one, and others cited therein, hold that the purchaser of a contingent interest in real property obtains only the same interest as that held by his vendor and that any subsequent happening which would defeat the interest of the vendor would defeat the interest of the purchaser. The death of Ed C. Boy before the happening of the uncertain contingency when his interest in the property in the clauses referred to would become vested and effective (which is,- according to out interpretation, the death of the aunt without issue which has not yet hap
But, conceding the interest of the children of Mrs. Lilly Roy as vested in them by the terms of the clauses of the wills, then the result would be the same. This court, without exception, has held that the cardinal rule for the interpretation of wills is to ascertain from their entire language the intention of the testator, and to construe and apply their terms in accordance therewith if they do not contravene any positive rule of law or of public policy. This statement is of such universal application as that it would be superfluous to cite cases in support of it. When the clauses of the wills under consideration said “And then it shall be divided among said children as it would descend under the laws.of Kentucky,” there was clearly manifested an intention on the part of the makers of the wills that only those persons should take, who at the time of the division (which could not possibly be till after the death of Emma R. Cosby), would be entitled to inherit from Lilly Roy under the laws of descent and distribution. If, therefore, any of her children should die before that time and leave issue then that issue would take under the wills the share of the deceased parent. In other words, our construction of the quoted sentence gives to it the same effect as if the testator had said “And then to such children of my daughter, Lilly Roy, as may be living and to the child or children of any who might be dead. ’ ’ That being, true, the interest of any child of Lilly Roy before that time, though it be regarded as vested, would be subject to be defeated by its death before the death of Emma R. Cosby, thus rendering it a defeasible vested interest, the defeasance depending upon the uncertain occurrence of its being alive at the happening of the time when the interest would become effective beneficially or in possession. In such cases the transferee of title or any
It results, therefore, that the court erred in overruling the motion to file the intervening pleadings and in rendering the judgment subjecting the property involved to the debt of appellee. Wherefore, the judgment against each of appellants is reversed with directions to proceed in accordance with this -opinion.
Whole court sitting.
