162 Ky. 726 | Ky. Ct. App. | 1915
Opinion- op the Court by
Affirming.
Benjamin Williamson, Sr., died a short time previous to February, 1879, domiciled in Pike County, Kentucky, leaving a last will and testament and codicil thereto, the construction of which, in part, is the subject of controversy in this action. His widow was named Esther Williamson. He also had a grandson whose name was Benjamin F. Williamson, and whose wife, yet living, also, bore the name of Esther Williamson. By the codicil to his will, the testator devised a portion of land to his widow, Esther Williamson, during her life, and another portion he devised the use and occupancy of to his grandson, Benjamin F. Williamson, during his life, and to Esther, the wife of Benjamin F. Williamson, if she should outlive her husband, during her life and widowhood. Esther Williamson, the wife of the testator, died after her husband, but a good many years ago. Benjamin F. Williamson and his wife, Esther Williamson, have several children, whose names are Clint Williamson,. Mary Smith, and Floyd Williamson, who are yet alive. They also had a son, C. W. Williamson, who is now dead, and who left no children. Benjamin F. Williamson and his wife, Esther, had a daughter, also, Laura T. Slater, who is now dead, but left one child surviving her, who is Benjamin Slater. Benjamin F. Williamson and his wife, Esther, are still alive.
In the will of Benjamin Williamson, Sr., as first published by him was clause seven, which related to his grandson, Benjamin F. Williamson, and his wife and children, and was as follows, namely:
“Seventh: All the lands I own on Long Branch and Lick Branch of Big Creek, I give to the children of my grandson,. Benjamin F. Williamson (son of Mitchell). This devise is to his children now in being, and such as may be hereafter born to the said Benjamin F., and the said Benjamin F. may use and occupy the said lands for the sole purpose of supporting and raising and supporting his children to mature age, and for no other purpose, and in the event of his death, his wife may occupy it for
The codicil to the will was as follows:
“I, Benjamin Williamson, Sr., of Pike County, Kentucky, do make, publish and declare this to be a codicil to my last will and testament, that is to say: All of paragraph the seventh, bequeathing my lands on the Long Branch and Lick Branch of Big Creek, is cancellled and the following is substituted in place thereof:
“I give and bequeath to my wife, Esther Williamson, all of the lands on the Long- Branch of Big Creek during her life time, commencing from the upper end of the field, above the' Ground Hog Hollow at a Mulberry, including all forks in said bounds from their to the head of the said Long Branch.
“In the event of her death to revert to the executor of this will, in trust for the children of Benjamin F. Williamson, as set forth below.
“To my grandsou, Benjamin F. Williamson (son of Mitchell), I grant permission to use and occupy the following described land for the sole purpose of supporting himself, and raising and supporting his children to mature age, and for no other purpose, and in the event of his death, his wife may occupy it for the same purpose and of no other purpose as long as she remains an unmarried widow, but no longer. Said land to commence at the lower end of the Big Hill field and etc., etc. * * * *
“The remainder of the land I own on the said Long Branch, and likewise that portion bequeathed to my -wife, Esther, at her death, and also that portion set forth to be occupied by Benjamin F. Williamson and wdfe, at their death, or in the event of the said Benjamin F. Williamson’s death, and his wdfe marrying, as above stated, I give to the children of my grandson, Benjamin F. Williamson (son of Mitchell), this devise is to his children now in being' and such as may hereafter be born to the said Benjamin F. This land to be in the discretion of the executor of this will, and as the children of the said Ben
“The land I own on said Long Branch, below the boundary to be occupied by Benjamin F. Williamson, is reserved in the hands of the executor of this will for the purpose of paying taxes which have or may accrue on said lands, and to pay to the said Benjamin F. Williamson two hundred dollars to discharge such outstanding debts as may now be against him, and towards purchasing him a set of blacksmith tools. Also to pay the one thousand dollars chargeable to my estate as set forth in paragraph No. 10, of this will.
“To enable this executor of this will to pay said amounts, I have sold to my sons, Wallace J. and Floyd E., sufficient standing poplar trees on said Long Branch to make twenty thousand feet, linear, said trees to be choice and selected with a view to average when cut 31 inches in diameter or upwards, on the following conditions, viz.:
“This portion of my estate to be charged with fifty dollars for every thousand feet, linear, and the said Wallace J. and Floyd E. Williamson to pay for said timber at the rate of six cents per cubic foot for one-half of such timber at the mouth of said Long Branch. (The charge above mentioned $50.00 on each 1,000 ft, to be retained by W. J. and F. E. Wmson.)
“Said Wallace J. and Floyd E. Williamson are granted the privilege to build dams in said Long Branch and the right of way over said lands to enable them to get said timber out.
“All rents and overplus that may accrue from the sale of this timber after discharging the obligations as set forth are to be retained and held in trust by the executor of this will for the benefit of the children of Benjamin F. Williamson at maturity. The lands I own on the Lick Branch of Big Creek, known as the Harman Reid Branch, are to be disposed of as set forth in paragraph the fifteenth of this will.”
These provisions created a life estate in Benjamin F. Williamson and his wife, Esther Williamson, to be terminated by their deaths, or by the remarriage of Esther Williamson, if she should outlive her husband, in the portion of the lands described in the clause of the codicil devising to them the use and occupancy of such lands.
C. W. Williamson, who was a son of Benjamin F. Williamson, married one Minnie V. Maynard, and after
Since that time W. H. Maynard has died intestate, leaving as his only heirs at law his children, E. G. Maynard, Kush Maynard, Effie Day, Grover Maynard, Ida Maynard, Robert Maynard, Lesley Maynard, Yirgil Maynard, and Inez Maynard. After the death of G W. Williamson, his widow, Minnie V. Williamson, claimed to be the owner of an interest in all of the lands mentioned in the codicil of the will, by reason of a devise of same to her by her husband, C. W. Williamson. After her death, her father, W. H. Maynard, and Arminta Maynard, her mother, claimed to own the interest formerly owned by C. W. Williamson in the lands, by inheritance from their daughter, Minnie V. Williamson. Since the death of W. H. Maynard, his children are claiming to be the owners of the moiety, which they claim that their father, W. H. Maynard, inherited from his daughter, Minnie Y. Williamson. Minnie Y. Williamson, during her life time, and hei father and mother since her death, have claimed the right given by the codicil to C. W. Williamson, to occupy a portion of the lands under that clause of the codicil which says: ‘ This land to be in the discretion of the executor of this will, and after the children of the said Benjamin F. Williamson arrive at mature age or marry, they are each to be permitted to occupy convenient situations on the said lands.”
As a result of the proceedings under a forcible entry and detainer warrant, in which W. H. Maynard and Ar-minta Maynard were the complainants, and Benjamin F. Williamson, the defendant, in the Pike Circuit Court, the Maynards acquired the possession of that part of the land which had been occupied by C. W. Williamson after
We presume that the charges made by the testator against the part of his estate mentioned in the codicil, have all been removed in the manner therein directed, as there is nothing said upon that subject in the petition.
It seems that the prime question to be determined on this appeal is the character of the estate, if any, had in the lands by C. W. Williamson. If the interest, owned by him, was vested before his death, he had such an ownership in the property as would pass by will to his devisees, or by the law of descent, if he had died intestate; but if his interest in it was a contingent remainder and contingent upon his living longer than his father and mother, who were two of the life tenants upon a portion of the land, and having died before the termination of their life estate, he would have had no interest of any kind in the land which would pass by descent to his heirs, if intestate, or that he could devise by will, if he died testate, as he did.
The intention of the testator as to when an estate devised is to vest, is the rule to determine, when it does vest, and this is to be determined by the terms used, and the rules established by the adjudications of the court for construing devises. Grigsby v. Breckinridge, et al., 12 B. M., 629.
In the case of Johnson v. Jacob, 11 Bush, 656, it is said: “A vested remainder is a vested interest to take effect after a particular estate is spent. It is an actual estate and may be sold and the title thereto passed to the purchaser.”
In the case of Grigsby v. Breckinridge, supra, it was also held: “That a vested remainder may be valid to take effect upon the determination of a particular estate, and that it may vest before the happening of the event which gives the right of possession.”
This court has also held that the present capacity of taking effect in possession, if the possession was to become vacant, and not the certainty that the possession will become vacant, before the estate limited in remainder
It is, furthermore, a well settled rule that it is not the uncertainty of the remainder interest, ever taking effect in possession, that makes a remainder contingent. A contingent remainder has also been defined to he a remainder limited, so as to depend on an event or condition which is dubious or uncertain, and which may never happen or'be performed. Johnson v. Jacob, supra.
In the case of Turner v. Patterson, 5 Dana, 292, the devise was: “To my daughter, Catherine Patterson, I give her and her children the fifty acres of land they now live on, to each an equal part.”
In that case, although there was not, as in this case, an expressed devise to the children then in being, as well as those that might be born thereafter, this court held, that in as much as the fifty acres of the land was all that was given to the mother, that she had a life estate therein, and that each of the children, whether then born or born thereafter, under that devise, had a vested remainder interest, and not a contingent one.
The court in that case used this language: “Upon the testator’s death, the remainder vested, eo instanti, in the children then living, because there is nothing in the will indicating a different intention, and because the law does not favor such a construction as will make a devise executory or contingent, and persons able to take a vested remainder were in existence when the life estate commenced. But, as there is nothing in the devise which can restrict the remainder to the children in whom it first vested, and as ‘children’ without qualification or limitation, included such as were born after the death of the testator, as well as those then living, the remainder opened and vested in each subsequent child as it came in esse; and having thus once vested in all of the children born during the particular estate, it did not survive upon the death of any one of them, but descended to the legal heir of such decedent.”
In the case at bar, the lands devised in the codicil of the will all seem to adjoin. The lands devised to the widow of the testator, Esther Williamson, during her life time, at her death vested in the executor of the will for the use and benefit of the children of Benjamin F. Williamson. The testator then proceeds to set apart another boundary of the land, which he describes by
It will be noted that in this codicil the word heirs of any person, nor issue of body, nor bodily heirs, or any similar words of any kind are used. The testator used the word children in every instance. Neither is there anything in the codicil, or in the entire will, which could lead to the conclusion that in the codicil he used the word children with the meaning attached to the word heirs. As a rule of construction, the words of the testator should be taken as expressing his meaning, unless it should appear from the context, or from his will taken as a whole, that he does not use such words with their generally accepted meaning. A different rule applies in determining whether a remainder interest is a vested or contingent one when the word children is used in describing the remaindermen, from the rule which prevails when the word heirs is used as descriptive of the remaindermen.
The cases relied upon by appellants as showing that the remainder interest attaching to the children of Ben
In these cases it was held that the remainder interest .in litigation was a contingent one, hut in each of these .cases the remaindermen were described as the heirs of the life tenant, and not as children of the life tenant.
The courts have held that where a devise to a certain person for life, and at such person’s death to his heirs, the estate in remainder does not vest until the death of the life tenant, because no living person can have heirs, and in addition to that, there can be no certain way of knowing who any person’s heirs may be until the death of such person, as the heirs may be all collaterals, and far removed from the life tenant in point of blood or may be in the ascending or descending scale; but by the adjudicated cases, the great weight of authority is, that where a devise is to one for life, and at his death to his children, that it creates a vested remainder in the children upon the death of the testator unless the entire will taken as a whole should show that the testator makes use of the word children, when he means and intends heirs. Turner v. Johnson’s Executors, et al., 160 Ky., 611. In the case at bar, the codicil describes some of the children of Benjamin F. Williamson to be then in being, and the petition does not disclose the fact, if any of them were born after the death of the testator. If they were all in being at the death of the testator, then each of them was capable of taking possession of the lands, if the life tenant should die, and in the light of the case of Turner v. 'Patterson, supra} if any of them were bom after the death of the testator, the remainder interest would open and vest in each one of those subsequently born. The mere fact that the right of the remainderman to enter into the possession of the property is contingent upon his living. longer than the life tenant, is not such a contingency as makes the remainder a contingent one, but it is the present capacity to take possession, if the life tenancy should expire, that determines whether the remainder interest is a vested or contingent one. Bowling v. Dobyns, 5 Dana, 442.
The fact that any one of the children of Benjamin F. Williamson might probably die before the end of the life tenancy, would not make the remainder interest owned by such child a contingent one. It appears from the entire will and codicil that the testator did not intend
We are therefore of the opinion that the interest acquired by C. W. Williamson, under the will and codicil, was a vested one, although the quantity of his interest can not be determined until the expiration of the life estate enjoyed by Benjamin P. Williamson and his wife, Esther Williamson, under the provisions of the will and codicil. Such interest being a vested remainder, passed by his will to his wife, Minnie Y. Williamson, and upon her death, intestate, passed to her heirs. A right to occupy some portion of these lands after he became married, was also a right which C. W. Williamson had under the provisions of the codicil, and that right likewise passed by his will to his devisee, and by the laws of descent, from her to her heirs.
It is therefore adjudged that the judgment appealed from be affirmed.