88 Ky. 114 | Ky. Ct. App. | 1889
delivered the opinion of the court. '
Ernest Wedekind made liis will in 1872, and died in August, 1873, unmarried and without issue. These appeals involve the right to the three thousand dollars named in the twelfth clause of his will, and which reads as follows:
“I give to my sister, Mrs. Diedrich Wedekind, the sum of five hundred dollars a year, and my executors, hereinafter named, are to pay the same to her annually until the first of July, 1882. If she dies before said first day of July, 1882, my executors, hereinafter named, are to pay said sum of five hundred dollars per annum to Mary Wedekind, provided she is unmarried ; and if said Mary is married, or does marry, then said annuity is to .cease from the time of her marriage. On the first day of July, 1882, if the said Mrs. Diedrich Wedekind is still living, I direct my executors, hereinafter named, to set apart five thousand dollars, and invest the same in mortgage notes, interest payable semi-annually, and the proceeds thereof to be paid to her as long as she lives. If she marries, the said annuity is not to be paid to her, but the said five thousand dollars is to remain in the hands of my executors until her death. Upon*117 her death my executors, hereinafter named, are directed to invest three thousand dollars of said sum in real estate for said Mary Wedekind, the title to the same to be made to her with a restriction that she shall [not have power to sell or encumber the same in any way, but may rent, use, or occupy the same, and upon her death to descend to her heirs. The remaining two thousand dollars of said five thousand dollars, shall be invested by my executors, hereinafter named,, in real estate for Minna Wedekind, sister of said Mary Wedekind, the title to the same to be made to her with a restriction that she shall not have power to sell or encumber the same in any way, but may rent, use, and occupy the same, and upon her death to descend to her heirs. Said investments are not to be made in any event until after July 1, 1882, and the annuity therein-provided is to cease at that time, unless the said Dif d-rich Wedekind is living, and has remained unmarried.”
She survived the testator, and also the first of July, 1882, and the five thousand dollars was, therefore, invested in notes as directed by the will, and the interest paid to her until her death in April, 1885, she having also received the annuity of five hundred bequeathed to her for the time from the testator’s death until July 1, 1882. Her daughter, Mary Wedekind, married John B. Komp in 1877, and died in 1878. They had one child, Lulie, and she died in July, 1878. The father died in 1881, all of his estate being devised by him to his executor, in trust for his children by a former wife. Mary Komp left surviving her a brother and a sister, Prank and Minna Wedekind. There are
The first question to be determined is whether the devise ever vested in Mary Wedekind. If so, then secondly, did it pass to her child under the will or by descent ?
It is well settled that the law favors that construction which will render estates vested, and not contingent. The law so inclines because it is nearly always the intention of the testator that his bounty shall be transmitted to the family of the beneficiary. If it be
Prima facie, it is to be presumed that a testator did not intend any estate disposed of by his will to lapse; and slight circumstances will, therefore, be regarded as showing that he intended the right to it to vest in the donee, although the possession of it may be postponed.
In this instance, the testater was interested in some mercantile firms. He also owned real estate jointly with others, and Ms will, therefore, provided that his ■estate should not be settled or distributed under it, -saving a few small annuities, until July 1, 1882. In fact, the first nine clauses of it relate to the continu
It is contended that where the only legatory words consist in a direction to do something with a sum of money in futuro for the legatee’s benefit, and the sum is not to be separated from the estate until that time, the legacy does not vest unless the legatee survives, that period. If, however, this be done for the convenience of the estate, as appears in the case now in hand, and not by reason of any incapacity of the devisee to take, then the rule contended for does not control, as, indeed, no rule controls if the testator’s, intention be plain. (Vandyke v. Vanderpool, 14, N. J., Eq. 198.)
The seventeenth clause of the will disposed of the residuum of the testators’s estate, and after providing; in the succeeding clause for the sale, by his executors, of his real estate, he says: “The money arising from my estate, is to be held by my executors, hereinafter named, and invested by them in good mortgage notes bearing interest, the interest payable semi-annually until the first day of July, 1882; and at that, time, or as soon thereafter as possible, all the legacies and specific devises above mentioned,' shall be settled, and my estate wound up as far as practicable.” The fund was to be separated from the balance of the estate at a certain time. It was not made to depend upon any uncertain event. The testator knew the first day of July, 1882, would come, and that Diedrieh Wedekind would die; and it is perfectly certain that he directed his estate to be kept intact until the time named, for its benefit and convenience.
In this instance, additional force is given to this fact, because it is evident the will was drawn by one skilled in such matters, and the devise to the testator’s sister in Germany, under the eleventh clause of the will, expressly provides: “In the event of her death at any time either before or after the first day of July, 1882, said annuity is to cease, and the money herein directed to be set apart shall belong to my - estate,” showing that where he intended a devise in a certain event to lapse, he expressly said so •, and this he did not do as to the one in question. The will abundantly shows that its draftsman knew how to express contingency in appropriate words. The fifteenth and sixteenth clauses of the will direct that on July 1, 1882, the sum of five thousand dollars each be set apart from his estate, and invested in real estate for Louisa and Rosa Buckel, they to have the use thereof, but no-power to sell or incumber it. These devises, as to contingency, are quite similar to the one in question, and it can hardly be supposed that the testator intended the disposition of so much of his estate to be.
Our conclusion is that the gift and enjoyment under the clause of the will in question were not one and the same ; that they were not both suspended until 1882, and that the testator did not intend the devise to Mary to be contingent upon her surviving that period, but that it vested upon the testator’s death, the enjoyment of it being postponed for the convenience of the estate.
When the will was made, the conventional interest law allowing ten per cent, was in force, and it is quite likely that the testator regarded the annuity of five hundred dollars a year, given by the clause in question, as equivalent to the interest upon the five thousand dollars; and if so, its payment confirms our view that the legacy was not contingent. It having vested in Mary Wedekind, then as the will provided that the title to the land in which it was to be invested should be made to her, but with the restriction that she should not sell or incumber it, “and upon her death to descend to her heirs,” did her daughter Lulie take as a purchaser under the will, or by descent as the heir of her mother ?
'It is contended that the expression “ descend to her heirs,” is equivalent to a direction that it should, at
The tenth clause of the will gave an annuity to one of the brothers of the testator until July 1, 18S2, or to his wife in the event of his death, and directed that at the time named, five thousand dollars should be invested for their benefit, and “after their death, the said five thousand dollars is to be paid to the children of my said brother Henry, share and share alike. If my said brother Henry and his wife, both die before the first day of July, 1882, the said five thousand dollars is not to be paid until said first day of July, 1882, at which time, if they both are dead,, the said children shall be entitled to the same.”
The clause last cited tends to show that the expression “descend to her heirs,” used in the one in question was not employed by way of words of purchase or to express a devise, but merely that the testator expected and intended his bounty would, upon Mary’s death, pass by descent to her heirs.
The judgment upon the appeal of John B. Komp’s executor, etc., is affirmed, but reversed upon that of the appellants, Minna and Frank Wedekind, and cause remanded for further proceedings consistent with this opinion.