152 Ky. 274 | Ky. Ct. App. | 1913
Opinion of the Court by
Reversing.
The will of .Sarah H. Woolley -contains -the following provisions:
“Sixth., It is my will that my executors -and' trustees shall after the payment of my -debts, and settlement of my estate, divide, or cause to be divided al-1 the rest and*275 residue of my estate, real, personal or mixed, into eqnal -portions, for the purpose of making just and eqnal partition among my children and their descendants; and after such division shall have been made, I direct my executors and trustees to convey to each one of my childr en or their descendants entitled thereto', one-half of ,siueh share or purport,' absolutely and in fee simple, and the other half of such share shall be held or invested in good real estate in the discretion of my trustees and executors for the use and benefit of my said child for the term of his- natural life, and; after his death to the use and for the benefit of his children, or, in default of children living at the time of his death to such uses as such 'child may declare, limit or appoint by deed or will; and! in default of such appointment then such moiety of such share, shall pass to and vest in the heirs of such child absolutely in fee, and my trustees may permit such child' to retain possession of the moiety of such share, without any account of rents or profits or to hold, use and occupy the same for life, without any 'account ¡and .without inpeachment of waste, and without any responsibility of said trustee therefor. It is my will that this provision shall only apply to* the shares of my sons and not to the shares of my daughters, which are hereinafter specially provided for by me
“Fourteenth. And it is my will that my executors and Trustees shall have full power and authority from time to time in their discretion to sell and convey, assign or transfer the respective moieties of my sons, mentioned and provided' fox in the sixth item of this will; and to reinvest as they ¡may choose the proceeds of any such sale, in any real estate whether productive or unproductive, in Kentucky or elsewhere; and' my said sons shall have no power to sell and convey, mortgage, charge or incumber their respeetivé moieties in any manner or to subject the same by their debts or otherwise in .any manner so as to impede, abridge, impair or destroy the right of my said executors under this will, or their successors to sell and convey .said-moieties, and reinvest the proceeds in any other real estate in Kentucky or elsewhere, to be held upon the same trusts and conditions; and to that end it is my will that the legal estatei in said' moieties shall be vested and remain in my said trustees', with a right' of entry upon the lands so to he held, as against my sons and all other persons whomsoever.”
“That when lands are held in trust by one person for the life of another, with remainder over to a class of persons, or to any person not .ascertained, or to be ascertained until tbe death of tbe person upon whose life .such estate for life is made to. .depend, or with power on the part of such person for whose life such life estate is held by the trustee, to dispose by a last will and testament, or by an instrument in the nature of a last will ¡and testament, it shall be competent for the circuit courts or courts of like jurisdiction in the county in which such land or a part thereof is situated, in an action to which all persons having a present or vested interest in such land are parties, to direct the trustee to either sell or mortgage;such land.”
The court on final hearing entered ¡a' judgment a® prayed by the plaintiffs and Walton appeals;
Our construction of the sixth clause of 'the will of Sarah H. Wo-olley, is that each sou takes absolutely and in fee simple one-half -of the estate allotted to- him, and that the -other half is held by the trustees for the use and benefit of such sou for the term of his natural life and after his death if he leaves issue to the use and benefit -of his children. Under the will -Charles W. Woolley took absolutely and in fee -simple when the allotment was made -one-half of the share allotted to him; and when he -died leaving three children, the other half which had been held for his use and benefit during his life, passed absolutely to his three ¡children, share and share alike. Our construction -of the fourteenth clause is that it refers to the half interest which the son-did not take absolutely under the sixth clause, hut which he was allowed to retain possession of 'and use and occupy without any account. When an estate is given absolutely - and in fee simple, la ¡subsequent provision will not be read as a qualification upon the estate unless- required- by the language used. There is a plain intention in the sixth clause to vest in each son- ¡absolutely -and in fee ¡simple one-half of his share of the estate; and this plain intention is n-ot modified by anything in the fourteenth clause. The Latter -clause wa-s inserted so that the executors might sell the -other half which the ¡son was to have the use -o-f during ¡his life. We therefore -conclude that the -deed which Charles W. Woolley and wife made to their daughter Louisa passed to her, ¡sub ject to- the limitations therein contained, the title to his half -of the property. The -other half -of the property -at -his -death vested -absolutely in his three children. It follows that no part -of the-property Ls no-w held- hy a trustee for the life of another, -and Section 498 -of the Code has no application.
Judgment reversed and canse remanded with- dir-ec