298 S.W. 938 | Ky. Ct. App. | 1927
Reversing.
This case involves the construction of the following will of Edwin Ward, who died a resident of Scott county, in 1926:
"I, Edwin Ward of county of Scott, and state of Kentucky, with sound mind (by the blessing of God), I make this my will, after all my just debts have been paid, and funeral expenses have been paid, wish my estate divided equally between my five children, Vashti, Robert, J.C., May and Harrod. I leave Cary $1.00. I permitted Cary to draw on my bank account from the year 1909 to 1920. I know that he used more than 1/6 of my whole estate which can be seen by my checks. If any of my heirs should die without heirs their part of my estate shall go to my heirs living. I love all my children dearly and hope they may be saved, if it be God's will with an everlasting salvation. I leave Robert and J.C. Ward my executors. I do not want any monument placed over my grave."
All five of the children to whom Edwin Ward devised his estate and who are mentioned in this will survived him. The question presented in this appeal is whether the expression, "if any of my heirs should die without heirs their part of my estate shall go to my heirs living," means a death by such heirs without heirs during the lifetime of the testator or a death by them without heirs at any time. The circuit court in its judgment, expressly relying on the case of Prewitt v. Prewitt,
Therefore, so far as the realty is concerned, the Atkinson case is controlling of this question now before us. However, as pointed out in the case of Ireland v. Cooper et al.,
For the reasons hereinbefore set out, the judgment of the lower court must be reversed, with instructions to enter a judgment in accordance with this opinion. *393