91 Ky. 547 | Ky. Ct. App. | 1891
DELIVERED THE OPINION OF THE COURT.
Henry H., devisee and only child of S. Gr. Williams, having died in infancy without issue, kindred of the testator brought this action against his widow and step-son, asserting title to the whole and seeking inimediate possession of two-thirds of real property left by him. But the lower court, without deciding who owns the fee, dismissed the action, upon the ground the widow is under the will entitled to not only a life estate in one-third, but use of the residue of land until the time when Henry would, if living, have become twenty-one years of age.
For proper determination of questions arising we here copy the entire will, as follows: “First, it is my will that my wife Ellen shall have one-third of my landed estate during her natural life, and at her death the whole of my landed estate goes to my son, Henry H. Williams, or Ms heirs.
“After my death it is my will that my step-son, Collie Hammack, shall remain on the farm with his mother and his brother, and that Collie shall assist his mother in carrying on the farm until Collie is twenty-one years of age. It is my will that my stepson, Collie, shall now be given one horse, and that
“It is my will that after my just debts are paid, that all my surplus stock on the farm shall be disposed of, and if there should be a balance in money, then said money shall be put out on interest, and same used for the purpose of schooling my son, Henry H. Williams. It is my will that my son, Henry H. Williams, be given a colt now. It is my will that when my son, Henry H. Williams, shall arrive at manhood, or is twenty-one years of age, then all my property, except the fifteen hundred dollars herein willed to my step-son, Collie Hammack, personal and real, shall go to my son, Henry H. Williams, or his heirs. It is my will that should my step-son, Collie Hammack, wish to attend school during winter months, and board at home, then nothing be charged him fox-said board.
“It is my will that my wife, Ellen, shall have all my household and kitchen furniture, beds, bedding, books, &c., and all fowls. It is my will that all plows, harness, gearing, machinery, &c., necessary to run the farm, and now on hand, be not sold.
“It is my will that horses and stock, sufficient to run the farm, shall remain on the place, and that a sufficient amount of corn, wheat and hay shall be exempt from sale, and enough of same be kept on the farm to answer all purposes for twelve months, and that all meat and lard now oix hand' in the smoke-house shall remain on the place,
Though the will was drafted unskillfully, the testator evidently had a fixed and matured plan for disposing of his estate, and was unusually precise and particular as to details. He appears to have possessed a general knowledge of the dower and distributive share to which his widow was entitled by statute, and been careful to provide in his will a full equivalent therefor, but no more. What he desired his step-son to have was specially mentioned, and the residue of his property, personal and real, was, in express and comprehensive terms, devised to his son, and a guardian appointed for the manifest purpose of controlling and preserving it for his sole use; and as it does. not appear that after payment of debts and legacy to the step-son, with which the personal property was clearly intended to be first charged, there would have been certainly left enough of it to maintain or perhaps properly educate his son, the testator must have intended the guardian, who had the undoubted power, to apply rents and profits of the land for such purposes rather than to leave his son dependent upon his mother, who might again marry. Therefore, while it may be fairly inferred the testator wished and expected his son to reside during minority at the homestead with and in custody of his mother, for which she would have been entitled to reasonable compensation, it seems, to us, if he had
The theory upon which they base their claim of ownership is, that Henry took under the will a mere contingent interest, and having died during life of his mother, and before he arrived at twenty-one years of age, they being the persons designated in the will “his heirs,” became owners of the land as devisees in substitution of him; or that even if the estate vested in .him at death of his father, still, having been defeated by his death occurring as it did, they, as his right heirs, are now entitled.
But the kindred of the testator contend an absolute estate, subject only to the widow’s life interest in one-third, vested in Henry, and they are now owners in virtue of section 9, chapter 81, General Statutes, as follows: “If an infant dies without issue, having title to real estate derived by gift, devise or descent from one of his parents, the whole estate shall descend to that parent, or his or her kindred, as hereinbefore directed, if there be any; and if not, then in like manner to the other parent, or his or her kindred;
If that section is to govern in this case, Henry’s half-brother has no interest whatever in the land, and' his mother only a life estate in one-third. (Driskell v. Hanks, 18 B. M., 855.) But it can not apply unless he had at time of his death an estate of inheritance, because, according to the only admissible construction, kindred of the testator take, if at all, by descent from his son, not as devisees under the will.
As the two clauses disposing of the land, though somewhat different in form of expression, are not inconsistent in meaning or effect, but connected and co-operative to the same end, and no reason appears for making different disposition of parts of the same land to the same and only devisee, we think the interest of Henry, whether contingent, or if vested, yet defeasible, or absolute and indefeasible, was designed to be of the same nature in all, except the widow’s life estate, which could not be defeated, made necessarily difference in time of enjoyment. Consequently, even if either the arrival of Henry at the age of twenty-one years, or the death of his mother was, both could not have been intended as determinate events for vesting his interest in the land.
Although the words “shall go,” occurring in the second of the two clauses in question, might in some cases, if used relative to a particular time or event when an estate is to vest, import a contingency or condition, we think, for several reasons, they were
The decisive question is whether the words “or his heirs,” used in both clauses, are to be treated as words of limitation, which involves changing the word or to
“By far the most numerous class of cases exhibiting change of a testator’s words are those in which the two words or and and are used without due regard to their respective import. And accordingly courts have often been called upon to rectify blunders of this nature; so often, indeed, as to have swelled the cases on the subject into a mass requiring much attention and discriminating arrangement in order to deduce from them intelligent and consistent principles.” (Jarman on Wills, volume 2, page 81.)
The same author, says: “ Or has often been changed into and when interposed between the name of the devisee and words of limitation introduced into a devise, as in the case of a devise of real estate to A or his heirs, or to A or the heirs of his body.” On the other hand, “a strong tendency of modern cases cer
The latter rule has no application to this case, but the first does apply, and is entitled to weight in determining the testator’s meaning, especially if he has elsewhere in his will, without consideration, or from lack of discrimination, used one of the words when the other would more accurately express his meaning, as was done in one of the clauses where he said: “When my son * shall arrive at manhood, or is twenty-one years of age.”
If that change be not made in this case, then such words will have to be added as fully express a purpose of the testator that in case, or in the event of,, the death of his son before arrival at twenty-one years of age, the whole residue of his estate, personal and real, was to go to the persons then answering the description of “his heirs,” which, it seems to us, would not comport with either the general context or plan of his will. For, first, it is plain he expected his son in the usual course of nature to survive his mother, thus leaving the testator’s step-son, stranger to him in blood, alone to take his entire estate in case of the death of Henry before manhood, which, however, it is equally plain he did not expect. Second, according to the scheme adopted by the testator, his entire estate was evidently intended to be disposed of, and thus arises the legal presumption the devise to his son was designed to be indefeasible.
In Robb v. Belt, &c., 12 B. M., 643, cited by counsel, the clause of the will upon which the question of changing words arose is substantially as follows: “I give to my wife all my estate, real and personal, during her widowhood. Should she marry, then I desire all my estate be equally divided among my eight children, or the heirs legally begotten of their bodies ; and should she die without marrying, the property to be equally divided among my eight children, or their heirs above expressed.”
It was held the word or should not be changed into and for reasons nob applying to this case, which differs essentially from that. There it was said the testator intended “to control the property until the happening of the event, when the division was to be made, and that whatever interest any one or all his children may have had upon his death was subject to that control, and, therefore, subject to be defeated or terminated by the death of such child before the time of division, and belonged by the will to the heirs of the body of such decedent living at the time fixed for the division.”
In this case all the property was disposed of by the will, and, as we have tried to show, the interest of the testator’s sons was intended to be neither contingent nor defeasible, but vested and absolute. There the testator looking to the event on which the di
In our opinion the change of the word or into and, as it occurs in the two clauses of the will, is clearly necessary to effectuate the true meaning and intention of the testator, which was to invest his son with the fee-simple title to the land, and that appellants, consequently, now own in virtue of the statute. Wherefore, the judgment is reversed, and cause remanded for proceedings consistent with this opinion.