134 Ky. 33 | Ky. Ct. App. | 1909
Opinion of the Court by
— Reversing.
Appellees, Amalia Holzhauer and others, instituted this action against appellant, John W. Schneider, to enforce the specific performance of a contract for the
For the purpose of determining the question whether or not appellees could convey a good title to the property, it will be necessary to construe the will of Grustavus Holzhauer. This will is as follows:
“I, Grustavus Holzhauer, do make and publish this my last will and testament.
“Item I. I will that my just debts be paid.
“I'tem II. I will and bequeath to my beloved wife, Amalia Holzhauer, all my property of every kind, real, personal and mixed, including my life insurance, to be held, used and enjoyed by her for and during' the time she shall remain my unmarried widow, and if my wife should remarry, it is my will that at that time she shall have for and during the remainder of her life, the use and income from one-third part of my said estate and the balance thereof shall be equally divided among my children or their descendants and at the death of my wife, the one-third part of my said estate, set apart as aforesaid for her use, shall be divided among my children and their descendants in the same manner as the other two-thirds of my estate are required to be. If, however, my wife should not remarry, then at her death my entire estate shall be divided equally among my children and their descendants. If at the time of any devision herein provided for, any of my children shall have died leaving children surviving them, such surviving children shall take the share of the child so dying and said grand
‘ ‘ Item III. I nominate my wife executrix of this will and ask that no bond be required of her as such. ’ ’ For appellees it is insisted that the law favors the vesting of estates, and that under the will in question the children of the testator took a vested interest in remainder which they could convey by deed. On the other hand, it is contended by appellant that, whatever interest the children took was subject to be defeated by their dying and leaving children prior to the remarriage of their mother or her death.
The will in question is not unlike that before this court for construction in the case of Lusby, etc., v. Taylor (Ky.) 17 R. 65, 30 S. W. 396. There the provisions of the will were as follows:
“Se.cond. The remainder of my estate, real, personal and mixed, I desire to give to my dear wife, Elizabeth, so long as she remains a widow; and should she again marry, she shall be endowed, during her life, of one-third of my whole estate remaining at the time of her marriage.
“Third. At the death of my wife my will is that all of my estate, of every description, be equally divided among my three children and George Tingle, son of my wife; or in case of the death of either, before the death of myself and wife, then among their legal representatives; that is to say, to my son, Jeptha Tingle, one equal share; to my daughter, Martha Jane O’Banion, one equal share; to my daughter, Ellen Lusby, one equal share; and to George Tingle, son of my wife, one equal share.
“Fourth. Should my wife marry again, the division, as above, will be made at the time of her marriage, subject to the provisions of the second
One of the testator’s daughters died; leaving children, before the death of the testator’s wife. Prior to her death the daughter mortgaged her interest in the land. The mortgagee brought suit to enforce his lien. The children of the daughter who died contested on the ground that their mother had no interest to convey. In discussing the character of the estate which the daughter took in the testator’s land this court said: “It was intended by the testator that his daughter, if alive when his widow married again, should she so marry, or was alive when his widow died, should take the interest provided for her; but, upon the daughter’s death, before either of these events, her children were to take. Under the will, therefore, the daughter, Ellen, took an estate, subject to be defeated upon her dying before the mar riage of her mother, or before the death of her mother. In either of these events her interest would terminate, and her children would take. If she were alive at the marriage or death of her mother, she took the fee; if dead, her children took it. It is a plain devise to the widow for life, or during her widowhood, remainder to her children, and if either of them should die before their mother married or died, the interest of the one dying should go to his or her children. The remainderman (Ellen) was divested of her interest by her death before the death of the life tenant, and the purchaser of her interest took that risk. For construction of similar provision see Mercantile Bank of N. Y. v. Ballard’s Assignee, 83 Ky. 481; 7 B. 478; 4 Am. St. Rep. 160, and cases there cited.”
By the terms of the will before us Amalia ITolzhauer took a life estate in all of the testator’s property, subject to be defeated as to two-thirds thereof by remarriage. After providing that, should his wife remarry, she should have, “for and during the remainder of her life, the use and interest from one-third part of my said estate,” he further provided that the balance should be equally divided .among his children or their descendants. Then the testator fur
In view of the foregoing authorities, and for the reasons indicated, we are of opinion that under the will in question the testator’s children take a defeasible fee, subject to be defeated by their dying and leaving children before the remarriage or death of their mother. That being the case, it necessarily follows that appellees are unable at this time to convey a good title to the property in question.
Judgment reversed and canse remanded, with directions to dismiss the petition.