170 Ky. 464 | Ky. Ct. App. | 1916
OpinioN op the Court by
Affirming.
This appeal involves the proper construction of the last will and testament of Phillip Bennett, deceased. The testator, at the time of his death, was a citizen of Payette county. The facts and circumstances, which the record discloses, as surrounding the testator, at the time of the execution of his will, are as follows:
The appellee, Sue Snedaker Bennett, was his second wife; his former wife was dead; there were not any children as the fruits of his first marriage; he had recently been married to appellee; he and appellee were contemplating making a journey'to Seattle, in the state of Washington; he then had two married sisters, one of whom lived in the province of Ontario, in the dominion of Canada, and the other resided in either the state of Massachusetts or New Hampshire; that he had eight nephews and nieces, who were the children of his deceased brother, Joseph Bennett; the nephews and nieces resided in the province of Ontario, in the dominion of Canada, except one, Marie Lalonde, who resided in the state of New York. The record does not disclose the value of his estate at the time of the execution of the will, except that he had real estate of possibly the value of $5,500.00, but the value of any other property, or in what it consisted is not disclosed.
The will was executed on the 17th day of June, 1909, and testator died on the 30th day of July, 1914. He and appellee made the journey to Seattle, which they had
The will was as follows:
.“June 17, 1909.
“I, Phillip Bennett, of the city of Lexington, Fayette Co., state of Kentucky, being of sound mind and memory and knowing the uncertainty of life, do make, publish and declare this my last will and testimony.
“I. I desire all my just debts paid.
“II. My executrix, which I shall name hereafter, shall buy a lot in the Lexington cemetery and build a vault as durable as possible and pay for it out of my estate.
“III. I bequeath to my wife, Sue Snedaker Bennett, all remaining of my estate to dispose of as she pleases for her own use. I request the court to ask of her no security or inventory of my property.
,“IY. In case of my wife’s death, at the same time as mine, or during this trip, as we are going on a long-journey, I further provide and appoint Miss Nannie W. Alexander as executrix of my estate, to have my vault built at the cemetery in Lexington, Ky., as above described, also, to leave $2,000.00 to keep this lot in repair, also keeping proper decorations on the ground; also move the remains of my first wife from the Joana Folev lot and inter in my lot-. The inscription on the vault shall bear’only the names of myself and Avives.
*467 “ V. I bequeath, to the living children of my brother, Joseph Bennett, residing at Alexander, Canada, $4,-000.00, and to each of my sisters, $2,000.00.
“VI. I give to George Watkins, colored, the house and lot on Robinson Avenue, to do with as he pleases.
“VIL I bequeath to Miss Nannie W. Alexander all my furniture, pictures and $3,000.00 in cash for settling up my estate. I request the court to ask of Miss Nannie W. Alexander, my executrix, no security or inventory of my estate.
“VIII. The remainder of my estate she shall dispose of as I have directed.
‘ ‘ Signed by me, Phillip Bennett,
“Witnessed by:
“ I)ANIEL E. Lawell,
“II. W. Bain,”
The controversy is between the appellee, upon one side, and the children of testator’s deceased brother and sisters and George Watkins, the devisees named in the fifth and sixth clauses of the will, who ■ are the appellants upon the other side. The appellee contends that only the first, second and third clauses of the will are effective upon the devolution of the estate; that the fourth, fifth, sixth, seventh and eighth clauses of the will were effective only in the event of the contingency expressed in the fourth clause — that they only took effect upon the condition that the testator and appellee should die at the same time, or that the appellee should die upon the journey to Seattle, and the condition never having arisen upon which their validity was predicated, they are not living or valid provisions of the will. The appellants concede that the effectiveness of the fourth clause is dependent upon the condition that would arise if appellee should die at the same time as the testator or while upon the journey to Seattle, and that the contingency upon which it was conditioned never having arisen, it is not now effective, but they contend that the devises made in the fifth and sixth clauses were not made to depend upon the happening of any contingency, and hence are to be enforced as living provisions of the will. The court below held in accordance with the contentions of appellee and hence this appeal.
The operation of the fourth clause of the will is expressly made to depend upon the happening of .a..contingency. By the first clause, the testator directs the
This leaves to be considered, only, the fifth and sixth clauses of the will. In fact, this is the crux of the controversy. The question is: “Do these two clauses depend for their validity and effect upon the contingency stated in the fourth clause of the will, or are they independent of its effect? Shall the condition upon which the fourth, seventh and eighth clauses depend for their validity, be read into the fifth and sixth clauses and control their operation? Or is the contingency expressed in the fourth clause limited in its effect to that clause, alone, or only to it and the seventh and eighth clauses?”
In determining what is the proper construction to be placed upon the provisions of a will, it is a rule of substantially universal application, that the intention, of the testator expressed in his will, must prevail, provided that intention is not inconsistent with the established rules of law. The courts must ascertain' the intention of the testator and give it effect, if the intention is not contrary to law. Buschmeyer v. Klein, &c., 139 Ky. 124; Thackston v. Watson, 84 Ky. 210; Hunt v. Johnson, 10 B. M. 344; Redfield, vol. 1., 437; Anderson v. Hall, 80
In arriving at the intention of the testator, the entire will and all of its provisions will he looked to, and if there are ambiguous terms or ambiguous clauses in a will, to ascertain the proper interpretations of them, the motives which can reasonably be supposed to have actuated the testator, the purpose of his making a will, the relations existing between the testator and devisees, the nature of his property, and the amount of it, may be looked to in aid of the language in ascertaining the intention of the testator. Henry v. Henry, 81 Ky. 342; Reuling’s Exor. v. Reuling, 137 Ky. 637; Levy’s Extx. v. Leeds, 151 Ky. 56. While, if general rules of construction are not inconsistent with the manifest intention of the testator, as ascertained from the whole will, and attending circumstances, they will be followed, yet, when the intention of the testator is ascertained, it must control and rules of construction will riot defeat the plain intention of the testator. Reynado v. Reynado, 82 Ky. 5; Guthrie v. Turner, 14 R. 336; Thackston v. Watson, 84 Ky. 206; McClelland’s Exrs. v. McClelland, 132 Ky. 284; Cook v. Hart, 135 Ky. 650; Hayman v. Morgan, 148 Ky. 230; Todd’s Guardian v. Todd’s Heirs, 155 Ky. 209; O’Rear v. Bogie, 157 Ky. 666; Loy v. McClister, 141 Ky. 800.
Each clause of a will must be read in connection with every other clause, and the intention of the testator must be gathered from a consideration of the whole of it. Barber’s Exrs. v. Baldwin’s Exr., 128 S. W. 1092; Duncan v. Berry’s Admr., 142 Ky. 178; Gray v. Garnett, 148 Ky. 34; Hanna v. Prewitt,. 153 Ky. 310.
It is apparent that a court would not be justified in picking out a clause or two of a will and from them determine, that a construction tó be placed upon it or them, from their language, should prevail in' spite of what the other clauses of the will may provide.
The fact that two wills can not probably be found exactly alike, with the attendant circumstances alike, makes it apparent that the rules of construction can not be applied to every will alike, and that, in the main, each will must be construed according to its own terms, and for that reason the intention of ]the testator has been
The eighth clause of the will, doubtless refers to the devise in the first clause of the will, provided the fourth clause should be operative by the death of appellee before the testator, and at the time of the making of the will the fourth, fifth, sixth, seventh and eighth clauses made a disposition of his entire estate, with a possibility of some small portion being left undevised, although his intention seems to have been to make a disposition of the entire estate, in the event Ms wife did not survive him, as well as in the event she did survive him. The rule that it will be presumed that one who makes a will disposes of his entire estate is a rule of construction and not one which authorizes the court to dispose of that which is in fact not disposed of Walters v. Neafus, 136 Ky. 758. We are fortified in the conclusion, that the devises made in the fifth and sixth clauses of the will, as well as the devises in the fourth, seventh and eighth clauses, were to become effective, only in the event of the death of appellee before that of the testator, by the fact that the fifth and sixth clauses are situated just following the fourth clause and immediately preceding the seventh clause, and the operation of the fourth, seventh and eighth clauses is without doubt conditional. The fifth and sixth clauses are embraced in that portion -of the will, wherein the testator was making a disposition of his estate, wMch was predicated upon the condition, that the death of his wife should be at the same time upon which he should die, or while she was upon the journey, and when he would probably die •before having opportunity to make other disposition of his estate. To hold that the devises made in the fifth
“While the last clause in a will must control if repugnant to previous provisions made by the testator, still the intention of the testator must determine the construction; and where there is a seeming inconsist1 ency that can be reconciled, as in this case, in determining the intention of the testator from the entire will, the chancellor will not hesitate to adopt the construction that follows the intention of the testator.”
To hold that the devises made in the fifth and sixth clauses are contingent upon the condition expressed in the fourth clause makes the entire will a harmonious whole, and gives effect to each clause of it, to the extent that it was intended, that they should have effect.
It is suggested by appellants, that a transposition of the clauses of the will can and should be made, when a will will then .be constructed, which will leave the different provisions of the will consistent with each other and then each of the clauses of the will can be made •operative, and thus avoid the effect of the condition stated in the fourth clause, as to any of the devises, except those in the fourth clause. To do this, however, would be violative of the well-established rules of law upon the subject. To authorize such a transposition of the clauses, it must be necessary to carry out and give effect to the intent of the testator. It being clearly his intention to bestow his entire estate, subject to the devises made in the first and second clauses of the will, upon his wife, absolutely, if she survived him, it would manifestly violate his intention to so transpose the clauses, as to bestow one-half of his estate upon others, although she survived him. No transposition of the
The judgment is therefore affirmed.