182 Ky. 738 | Ky. Ct. App. | 1919
Opinion op the Court by
Affirming.
Emanuel Williams died on August 26, 1891, and left a last will and testament, which had been executed on February 10,1891. He left surviving him, a widow and several children, to whom, by his will, he made devises, and,, as it appears, made a disposition, by the will, of his entire estate. Previous to 1876, he became the owner of a lot, in the town 'of Cynthiana, which was situated upon the corner of Walnut street, and Pike street, in that city. The lot abutted on Walnut street, on the east, and on Pike street, on'-the'south. The frontage of the lot, on Pike street, was forty-seven and one-half feet, and its depth, from Pike street, to the north end.of the lot, was seventy feet, nine and one-half inches. Hence, upon the eastern.'side, it abutted upon Walnut street, the entire length, from south to north. At the time Emanuel Williams acquired the lot, there was, upon it, a two-story frame building, which stood upon the corner, made by the intersection of Walnut street and Pike street, and was about twenty feet, in width, and extended along Walnut street, to a depth of fifty-six feet. On the north end of this building, and as a continuation of it, a small one-story structure stood, and it, together with the main frame building covered all of the front of the lot upon Walnut street, except a few feet, at the north end of the lot. To make the situation of the buildings and fixtures upon the lot, intelligible, reference is made to the following diagram:
The testator devised the frame house to his son, the appellee, Dennis Williams, and the brick building to his son, the appellant, P. A. Williams. Disagreeing about the interest devised to each of them, this action was instituted, by the appellant, whom we will call, hereafter, the plaintiff, against the appellee, whom we will call, hereafter the defendant, to quiet his title to the portions of the property, claimed by each of them, when the defendant, by counterclaim, set up his claims to the property, and asked, that his title be quieted to certain portions of the prop
From the judgment, the plaintiff has appealed.
Neither of the parties owns any interest in the prop■erty, except to the extent, it was. devised to them, by the testator’s will, and hence, the -extent of the ownership of ■each, must be determined from a" construction of the will. The portions of the will, which relate to the property, in controversy, so far as concerns the present rights of the parties, are as follows:
• ‘ ‘ Item second: I own two houses and lots, one a frame, situated on the northwest corner of Pike and Walnut streets, in Cynthiana, the other a brick, situated on Pike, west of and adjoining the frame.
“Item sixth: I devise the frame house,-on the cornel of Pike and Walnut streets, to my son, Dennis Williams,- and the brick house adjacent thereto, I devise to my son,. Patrick Williams. There is a hallway between these two houses, now used only by the occupants of the brick house, but it may be desirable to have it used by both, in that event it shall be so used, and in the event of the destruction of the house, in which it is built, the hall shall again be reconstructed for the use of both, in the event of the destruction of both houses,- the ground, now covered by the stairway, will be equally divided between the-two lots, and may be built upon as the owners shall provide. ’ ’■
A large mass of testimony was taken, much of which is incompetent, and a multitude of exceptions were taken and filed, all of which were overruled by the court. Their number precluded their consideration separately, in this opinion, but, suffice it to say, that the primary purpose in the construction of a will is to ascertain the intention of the testator, and when this intention is ascertained, it controls, to the exclusion of any rules of construction.
The hallway was not devised to either the plaintiff or the defendant, as a portion of the building devised to him. The testator, intended to devise the hallway to them, jointly, and for their joint use. Either one, desiring to use it in a reasonable and proper way, and for the purposes, intended for the use of a hallway, may do so, and this joint use may continue, until the destruction of both buildings, in which event, the land, which it covers, shall be divided equally between the two lots. The word, “hallway,” was intended to be used, instead of “‘stairway, ’ ’ as used in the will, and the testator, by the use of the latter word intended and meant “hallway,” as the stairway only covers a very small portion of the ground devised to the parties jointly, until,the destruction of both buildings, and the testator was evidently, intending to dispose of it, all, in severalty, at that time, and since an equal division of the land covered by the stairway, would not effectuate the intention of the testator. _
In the second clause of the will, the testator describes the property devised to plaintiff and defendant, as “two houses and lots.” He does not describe the property, as two houses, with the lots upon, which they stood to be thereafter ascertained, and defined. He, unquestionably, in making his will, had in his mind, two separate lots then existing. There had never been ahy division of the grounds, upon which the devised houses stood, into two separate lots, before their ownership by the testator, and the only division ever made by him, was that described by the high board fence. This division, he made, as soon as the brick house was completed, and he continued the division, until he executed the will, and as long as he lived, a period of time, from thirteen to fifteen years. During this period of time, the portions of ground, included by the lines described by the letters and figures, X, J, K, N, Y, C. Z, I, D, O, V, R, S, was used, nearly exclusively, in connection, with the occupancy and use of the frame house, and by the tenants, of the frame house and the patrons of the business carried on therein; while the grounds described, by the letters and figures, X, H, 7, 8, 9, 2, Y, P, N, K and J were used nearly exclusively by the tenants of the brick house, and in connection with it. It was certainly the intention of the testator to pass the grounds, which he owned, at this place, and not cov
The judgment is therefore affirmed.