104 Ky. 857 | Ky. Ct. App. | 1898
delivebiíd the opinion of the coubt.
In January, 1894, Daniel Ward died in Daviess county. After his death the appellees produced and offered for probate in the county court a paper purporting to be the last will and testament of said decedent. By the order and judgment of the county court the paper was probated as the will of Daniel Ward, and appellants prosecuted an appeal to the circuit court.. That court, upon trial' had, adjudged the paper to be the will of Daniel Ward, and from that judgment this appeal is taken.
The paper in contest reads:
“In the name of God, Amen. I, Daniel Ward, of Daviess county, State of Kentucky, being of sound and disposing mind and memory, calling to mind the frailty of human life, and being desirous to make some special bequests to my three sons, David J. Ward, Thomas W. Ward, and Walter L. Ward, while I have strength and capacity so to do, do make and publish this, my last will and testament, in manner and form following, to-wit: First, I give, devise and bequeath to my son David J. Ward the farm upon which we are now living, in Daviess county, Kentucky, containing one hundred and thirty-three acres, more or less. To have and to hold said home farm, to him and his heirs and assigns, forever: provided, that he is to give me and my wife a home with him on said farm, and to board, clothe, pay doctor’s bills, and all necessary expenses for a*861 comfortable support during our natural lives, and to bury us when dead, free of charge, but to be assisted by his two brothers, Thomas W. Ward and Walter L. Ward, as will be hereafter mentioned. He is also to keep one horse free of charge, and is to take possession at this writing, and to pay taxes on the farm,; and it is to be his entire interest in my estate, both personal and real. Second, I give, devise, and bequeath to my two sons, Thos. W. Ward and Walter L. Ward, a tract or parcel of land off of the southwest end of the tract of land, containing (170 acres) one hundred and seventy acres, bought of Cameal and Griffith, December 15,1843. See Deed Book G., page 353. To commence from the S. W. corner of said land and running is. 10 E., with the southern lines of said tract of land, also with Thos. W. Wade’s southern line, same course, so as to include eighty-six acres, which is to be equally divided east and west, and Thomas to have the portion lying next to his home tract of land, and Walter L. Ward to have the portion lying south of it. To have and to hold said parcels of land, to them and to their heirs and assigns, forever; provided, however, that they are each to be bound with David for all necessary expenses for the maintenance of myself and wife during our natural lives, and burial expenses when dead. They are to take possession of said land at this writing, and to pay the taxes on the same; and it is to be their entire interest in my estate, both real and personal. In witness whereof I have hereunto set my hand and seal this 27th day of November, 1891: Daniel Ward.
“The* foregoing instrument was at the date thereof declared to us by the testator, Daniel Ward, to be his last will and testament, and acknowledged to each of us that he had subscribed the same; and we at his request sign*862 our names hereto as attesting witnesses. B. F. Ramsey, Whitésville, Daviess County, Kentucky, D. F. Brooks,. Whitesville, Daviess County, Kentuclqy.”
Counsel for appellants contend that the paper is not testamentary, and not a will at all, and that, therefore, it could not, under any proof, be admitted to probate. If this contention be correct, it is decisive of the case, and it will be unnecessary to notice any other errors complained, of. Blacks tone defines a will to be “the legal declaration of a man’s intention, which he wills to be performed after his death.” 2 Bl. Comm., 499. Jarman defines a will to be “an instrument by which a person makes a disposition of his property, to take effect after his decease, and which is in its own nature ambulatory and revocable during his life. 1 Jarm. Wills, p. 26. Redfield approves the definition of the Supreme Court of Maryland, that a will is “any instrument whereby a person makes a disposition of his property, to take effect after his death.” 1 Redf. Wills, 5 approving Cover v. Stem, 67 Md., 449 [10 Atl., 2331 1 Am. St R., 406]. “A will may be defined as the legal declaration of a man’s intention, which he wills to be performed after' his death, touching either the disposition of his property,, the guardianship of his children, or the administration of his estate.” 29 Am. & Eng.. Enc. of Law, 124. There is no particular form of a will or deed prescribed by our law, but common usage has chosen certain words, that appear in either kind of instrument, and generally do. so appear. The words “give, devise, bequeath,” are common to wills. The expression, “To have and to hold the premises, to him and his heirs and assigns, forever,” is common to deeds. This is the usual habendum clause in deeds. This instrument contains both expressions. However, the instrument itself sa=ys, “Do make and publish this, my last will and testament,” and was witnessed as a
From these authorities of other courts than our own— and they might be extended indefinitely — it appears that the one important characteristic that is to distinguish a will is that no present estate is granted; that the devisor has at all times the right of revocation, at his will and pleasure, without thereby devesting any person of a right,