190 Ky. 582 | Ky. Ct. App. | 1921
Opinion of the Court by
Affirming.
The appellant, Amelia R. Thurmond, who previous to her marriage was Amelia I. Robards, sought by this action a construction of the last will and testament of her mother, Mary D. Robards, and therein insisted that under the terms of the will she was devised the fee simple in a certain farm, which she has since sold, as authorized by the will, and invested the proceeds in the purchase of another farm, and that she is now owner with a fee simple title of the latter farm. The court adjudged that the will devised to her a life estate only in the farm mentioned in the'will, with the power to .sell and convey same, but was required to reinvest the proceeds of the sale in other real estate, to be held by her as a home, upon the same terms under which she held the farm which she sold, and that the purchaser from her of the farm was required to see that the purchase money paid by him was so applied, and that the remainder interest in the farm was owned by her infant son, William Hunton Thurmond, and such other children as may be hereafter born to her, if any, but if such son or any other child, which may hereafter be born to her, should die in the lifetime of the mother, his or their interest would be defeated. From this judgment she has appealed and the one question for determination is the nature of the estate which was devised to her by the will.
The testatrix after, by the first clause of the will, having directed the payment ,qf any debt which she might owe, and her funeral expenses, made a disposition of her property by the second clause of the will which is as follows :
“Item 2nd. I give and bequeath all of the residue of my real and personal property to my beloved daughter, Amelia I. Robareis, which consists of a farm in Boyle qounty and bank stock and other property. 'She is to hold and have said farm, so that she may never be without a home, she may sell the same, but if she does so she and the purchaser will be required to revest the proceeds at
The remaining clause of the will provided for the appointment of an executrix and nothing more.
The contentions made for appellant are that the first sentence of the second'clause of the will devised to her the unqualified fee in the farm, and therefore the remainder of the clause is to be regarded as void, because it is an attempt to qualify the fee and to lessen the estate already devised to her, and, also, contains an attempt to create a limitation over to her children of an estate in remainder, when the entire estate having been devised to her there was nothing to limit over. It is also contended that the clause after the first sentence is void, because it is an attempt to impose an unreasonable restraint upon her power of alienation of the fee devised to her, as she is by the terms of the clause restrained from alienating the farm during her entire lifetime, except for the purpose of reinvesting the proceeds arising from a sale of it in other lands to be held upon the same terms. There could be no doubt of the soundness of these contentions, if the will, in fact, devised to appellant the land in fee simple. In such case there could be no estate to be limited over upon a fee as a fee simple is the entire estate and when given there is nothing further to be given, and the familiar principle that a limitation after a fee simple is void, would control the construction of the will. Close’s Adm’r v. Close, 118 S. W. 980; Williams, et al. v. Neal’s Guardian, 105 S. W. 951; Trustees, etc. v. Mize, 181 Ky. 567; Nelson, et al. v. Nelson, etc., 140 Ky. 410; Barth v. Barth, 38 S. W. 511; Becker v. Roth, 132 Ky. 429; Radford v. Fidelity, etc., 185 Ky. 453; Dills v. Adams, 19 K. L. R. 1169; Irvin v. Putnam, 89 S. W. 581. Likewise if appellant was devised the fee in the land, she might properly be restrained from alienating it for a reasonable period of time, but an attempt to restrain its alienation by her during her entire lifetime would be an unreasonable restraint and repugnant to the ownership of a fee, and therefore void. Harkness v. Lisle, 132 Ky. 767.
The above principles must be accepted as sound in any state of case to which they are applicable, but, neith
With the above seasoned principles in view, we conclude that the testatrix intended to devise her entire personal estate to appellant, absolutely and in fee simple'. She expressly says so in the first sentence of the second clause of her will, and nowhere undertakes to limit or -modify the devise. By the same sentence, if it stood
It is insisted, that, if it is held, that the appellant has only a life estate in the farm with the remainder interest limited over to such children, as she may have living at her death, the interest of the child or children, in enjoyment, depending upon the contingency of their outliving the mother, that in the event of the death of the life tenant without any children then living, who could take the remainder, there would be a failure to dispose of the entire estate by the will, contrary to the presumption indulged, when one makes a will, and for such reason it should be held that a fee was devised to the first taker, under the rule that the law favors the vesting of estates, and when a will is made, a presumption against intestacy, is indulged and hence when a will is susceptible of two constructions, that should prevail which disposes of the entire estate. There is no doubt that such principle may be properly invoked where the susceptibility of two constructions exists. Howard v. Cole, 124 Ky. 812; Wood v. Wood, 127 Ky. 114; Newcomb v. Fidelity Trust Company, 33 K. L. R. 41; Deppen v. Deppen, 132 Ky. 755. This rule, however, is a rule of construction only, and can be invoked only to aid the interpretation of a will where the intention of the testator is conveyed in uncertain and ambiguous terms, and has no place where the presumption against partial intestacy is overcome by the plainly expressed intention of the testator to do otherwise, as exists in tlie will under consideration, or is necessarily implied from the language made use of. Walter v. Neafus, 136 Ky. 756; Watkins v. Watkins, 120 S. W. 341; Thomas v. Thomas, 33 K. L. R. 700; Hackney v. Tucker, 121 S. W. 417. There is no ground upon which it can be successful ly contended that the will in the instant case is susceptible of any construction, except that it gives to the first taker a life estate and no more, and limits the remainder interest over to the children of the first taker who may be alive at her death.
The estate devised to appellant being a life estate, the limitation over of an estate in remainder to her children is a valid one. Where a life estate, only, is given, although with a power of disposition in the life tenant, a limitation over of such of the devised property as should remain undisposed of at the death of the life tenant is
The judgment so far as it adjudges that appellant has a life estate only in the farm with the power to sell it and to reinvest the proceeds in other real estate, under the conditions prescribed by the will, and to be held upon similar terms, is therefore affirmed.