Weaver v. Weaver's Ex'rs

| Ky. Ct. App. | Jan 16, 1892

JUDGE LEWIS

DELIVERED THE OPINION OP THE COURT.

The only question in this case is whether under the will of ‘William T. "Weaver his widow is entitled to an estate for life in the real and personal property devised, remainder to Ms two children; or, as adjudged by the Chancellor, each of the three persons take absolutely one-third thereof. The will is as follows : “ I desire that John "W. Shields takes possession of all my estate, both real and personal, including a policy of insurance on my life of three thousand dollars ($3,000.00), as executor of this my last will and testament and manage and dispose of same to the best possible advantage, that is so much thereof as may be necessary to pay all my just debts and personal expenses, and deliver the remainder to my wife, Mary 'Eliza Weaver, who is requested and expected to manage same to the best advantage in caring for and educating the children and, supporting herself.”

It seems to us the language of the testator makes his intention to give to his widow a life estate in all the property left after paying debts, so plain that there is no need of resorting to rules of construction. He directs the executor to deliver to her not a part but all the remainder of his estate, the possession and control of which he manifestly intended she should have during her life. No provision is made for either division of the real or distribution of personal property, which would have to take place if she and the two children are each entitled absolutely and presently to one-third. Nor can it be inferred from the language used or any existing condition, that he intended her to be restricted to the possession and use of less than the .whole estate left after payment of debts and delivered to her by the executor.

In the case of Frank v. Unz, 91 Ky., 621" court="Ky. Ct. App." date_filed="1891-06-18" href="https://app.midpage.ai/document/frank-v-unz-7132524?utm_source=webapp" opinion_id="7132524">91 Ky., 621, the language of the will was : “ The rest and residue of my estate, real, personal and mixed, I give to my dear wife, Ann Maria Erank, for her own use and the benefit of our children forever.” He also appointed his wife executrix and guardian of the minor children, and requested she be allowed to qualify without security.

In that ease, after examining and referring to numerous eases, the opinion was rendered that the widow took under the will a life estate, remainder to the children, this language being used: “ It may be regarded as settled law in eases where the devise is by the husband directly to his wife and children that the wife takes a life estate only, unless there is something else in the will showing a contrary intention.”

That case we regard as decisive of the question here presented. Indeed, the intention of the testator to give to his widow a life estate is more clearly indicated in this than in that ease. Eor here, unlike that, the estate does not go into possession of the widow as executrix, but what is left after paying debts by an executor appointed for the purpose is directed to be delivered to her; nor is any provision made for a guardian of the infants to take possession of their share of the estate.

It seems to us, both the language of the testator in this •case, and settled rules of construction applicable to it, require the will to-be construed as giving to the widow a life estate in all the property, real and personal, and therefore the judgment is reversed for proceedings consistent with this opinion.