85 Ky. 486 | Ky. Ct. App. | 1887
delivered the opinion of the court.
These two actions, in the nature of ejectments, were instituted in the court below for the recovery of the land in controversy by the children and devisees of John P. Wills, who are the appellees, against the devisees of John G. Wills, the present appellants.
The right of recovery depends on the construction given the last will of John P. Wills, deceased.
The testator had four children living at the time of his death and a grandchild. He disinherited his grandchild, giving his entire estate to his four children. Tlieir names were Martha Flynn (wife of Dudley Flynn), John G. Wills, Benjamin Wills and Mary E. Wills.
The son, John G. Wills, took possession of-his part of the realty in the year 1870, and died long after the testator, his father, without children, leaving a last will and testament, by which he-devised his part of the realty to the present appellants.
It is maintained by the appellees that the son, John G. Wills, had no power to dispose of this realty by will or otherwise, and that, having died without children, his part of the éstate passed under his father’s will to his surviving brothers and sisters or their descendants, who are the appellees; while the appellants insist that, at the death of John P. Wills (the father), his son, John G. Wills, surviving him, took an absolute estate in the land, and, therefore, the title passed from him under his last will to them.
After the death of the first testator his son, John G. Wills, claiming to be the owner in fee of that part of the estate devised to him, sold a small strip or par
The language of the will is as follows: “Clause 2. I will to my beloved wife Nancy what she is enti
“3. It is my will that, after the special devise above, that all my property be equally divided among my four living children, Martha Ann Flynn, John Gr. Wills, Benj. E. Wills and Mary Elizabeth Wills, under the restrictions and exceptions hereinafter made.”
“4. I give to my grand-daughter, Martha Lockman, formerly Martha Flynn, one dollar.”
‘'5. It is my will that whatever portion of my estate should go to my daughter Mary Elizabeth, shall go to her exclusive benefit and control, to the total exclusion of her husband, both as to principal and profits and proceeds; and this provision is also to apply to my daughter Martha Ann Flynn, I herein making the same provisions with regard to her interest ; not, however, through any lack of confidence iii her present husband.”
“6. I will my sons, John Gr. and Benj. E. Wills, my executors herein, and request them to carry out faithfully the provisions of this will.”
“7. In case • of the death of either of my children, I will that their said interest shall go to their children, in case they have any ; if not, it is to go equally to my four living children, or the heirs of their body, or such as may be living.”
The will of the common ancestor, John P. Wills,
Did the testator in this case intend to give to his four children the fee, subject to be divested at their death without leaving children, or, in other words, did the language used create a defeasible fee ? If not, did the testator intend to give to each of his children only an estate for life in the estate devised, or was it his intention to give to them the absolute fee, in the event they were living, to take the estate at his, the testator’s, death?
When this case was heretofore in this court, the case of Hughes v. Hughes, 12 B. Monroe, 115, was referred to as recognizing the following rule of construction that should be applied to the language of the present will, and that is: “In the case of an immediate devise, it is generally true that a devise over, in the event of the death of the preceding devisee, refers to that event occurring in the life-time of the testator, and this construction prevails where there is no other period to which the words can be referred. The application of all rules of construction must necessarily be varied by the language used by the testator, the object being to arrive at his intention, to be gathered from the entire will.”
A defeasible fee is where the devisee becomes invested with the fee-simple title, subject to be divested
Therefore, in the case before us there was no defeasible fee, because, by the express language of the will, the testator has provided that “in case of the death of either of my children (John G. Wills being one . of them), then said interest shall go to their children in case they have any; if not, to my four living children or the heirs of their body,” etc. The children of the four devisees, if any, were, by the provisions of the will, to be vested with an interest upon the happening of a contingency, and the question presented in the case is, what was that contingency, and when was it to happen, by which the children, if any, were to take, and if no children, the surviving brothers and sisters of the immediate devisee ? We have seen that it was. not a defeasible fee, and there being a devise over to the children, if any, and if none, to the survivors of the first takers, the four children of the tes
The will of the testator was written and signed when he owned land, slaves, stock, and other personal estate, including moneys, dioses in action, etc., and from its contents he must have been possessed of a considerable estate, real and personal. He made ample provision for his wife, disinherited his grandchild, the child of a deceased daughter, then gave his entire estate to his four children, naming them, subject to the restrictions and exceptions thereinafter set forth. He then provided that, as to his two daughters, their husbands are to have no interest in the estate devised to them, either in the principal or profits, and then makes his two sons his executors, with directions to them to execute faithfully the provisions of his will. It was, so far, a complete instrument except the signing and
It is evident that tbe draftsman of tbe instrument must have known bow to create a life estate, and equally so, we think, that tbe testator bad no intention-of kmiting tbe devise of bis moneys, cboses in action, slaves and land to a life estate in Ms four cbildren. Instead of saying I give this estate to each of my cbildren for life, and then to their cbildren, and if no cbildren, then to my surviving cbildren, if such was tbe purpose of tbe testator, tbe draftsman was evidently attempting to provide for tbe contingency of one or more of tbe principal devisees dying before tbe testator, and there being no one to take, then be says : “In case of tbe death of either of my cbildren I will that their said interest shall go to their cbildren, if any ; if not, it is to be equally divided between my four living
If the restrictions and exceptions mentioned in the third clause of the testator’s will, by which the absolute estate is devised to the testator's four children, are to be applied to the seventh and.last clause of the will, it can make no difference in the construction to be given that instrument. “In case of the death of either of my children I will that their said interest ■shall go to their children, in case they have any, ’ ’ etc.
That the death of the testator’s four children was an event that must certainly happen, and the period of time at which the children of the testator’s children were to take is the important inquiry.
■ This was not a devise over in the event the immediate devisees died without children, but here was a devise first to the children of the immediate devisee, and if nono, to the surviving brothers and sisters. The event, thon, upon which the devisee was to be deprived
If the appellees are entitled to recover, this case must be brought within either the second, or third class of cases. It cannot be brought under the second class, because in that class the first devisee takes the fee, if at his death he has a child or children, and his children when he dies take from him and not under the will.
Here the children of the immediate devisees are to take under the will upon the happening of a contingency, and that contingency is the death of the immediate devisee Before the death of the testator. This case cannot come under the third class, because, for the reasons already given, there was no intention on the part of the testator to create a life estate.
In the case of Edwards v. Edwards, a life estate was first carved out by the testator, and then to B. absolutely, but if he should die without leaving children, then to B.’s brother. B. survived the life tenant, and it was held that he took an absolute estate. This is really an authority against the construction given the will below, although the cases are not analogous ; for if it is to be assumed that these devisees had only a life estate, it ends the controversy, and the judgment below should be affirmed.
In the case of O’Mahoney v. Burdett, 7 English, and Irish Appeals, 388, the bequest was to A., and if he shall die unmarried or without children, to B., and it was held to be an absolute gift to A., de
This case comes under the first class of cases mentioned in Edwards v. Edwards. The devise first to A.; if he should die’, then to B., and if B. should be dead, to C. First to the immediate devisees of the testator, “incase they should die, then to their children in case they have any ; if not it is to go to the surviving devisees.
If the devise to the children had been omitted, and the devise had read “in case of the death of either of my children, then to the survivors,” the intention of the testator as to the time would necessarily refer to his own death.
Cases may be found in the English reports controverting this rule, and at variance with the rule in this State as to the time at which an estate is to vest, or the devisee to be divested of his title; but it must be recollected that the effort of the courts in this country, when not inconsistent with the intention of the testator, is to prevent the title to real estate from remaining contingent, and unless there are plain indications of a contrary intent, to hold the title vested in those claiming under the will or gift; and we can not, when looking to the provisions of this entire will,
In the case of Ware v. Watson, 7 De Gex, M. & G., 247, the testator had three sons and three daughters. He divided his estate into six shares, with the direction that each son’s portion should be paid to them as soon as convenient after the testator’s death, and provided: “ That if any son died without having issue living at his death, the share intended for the son should descend to the survivors of the testator’s children,” etc. This provision was omitted from the devise to his daughters, and the court looking to the entire will, held that the shares of the sons surviving vested absolutely at the death of the testator.
This last case is much stronger, and goes farther in support of the appellant’s claim, although an English case, than any we have been able to find ; and still we think, when looking to the whole will, such was the testator’s intention.
Neither the case of Farthing v. Allen, 2 Maddock’s Ch’y, 503, or that of Child v. Giblett, 3 Mylne & Keen, 281, sustain the right of recovery in the appellees. In the last-named case, the testator devised his estate in equal portions to his two daughters, and, in the case of the death of either, to the survivor ; and in the event of their marrying and having children, then to the child or children of them or the survivor, if they attain the age of twenty-one years; but if not, then among the children of Paul Giblett. The question presented in that case was, whether the two daughters, surviving the testator, took an absolute
Where there is an absolute devise to several, under which the devisees or donees would be entitled to the possession at the death of the testator, with a proviso that if either should die, then to the survivors, it is a universal rxrle that the survivorship refers to the death of the testator; but where the gift is to take effect after the termination of a particular estate, the survivorship applies to those who survive the period of distribution; that is, the termination of the particular estate. (Wren v. Hynes’ Adm’r, 2 Met., 129.)
In Birney v. Richardson, 5 Dana, 424, Richardson devised his estate to his widow during widowhood, and if she married, then to his several children; but if either should die without children, then his or her part to go to the surviving children. It was held that the children living at the marriage of the widow took the absolute estate not defeasible at their death at any time without children.
In discussing that case this court said: “Had the bequests been direct and immediate to the testator’s children as tenants in common, then the only question as to dying toithout issue would have been whether it meant a death in the testator’s life-time, or at any time however remote. And nothing else appearing to aid in the interpretation, the law would incline to construe, ‘dying without issue? as meaning the death of the legatee without issue in the testator’s life time.
In the present case there was no remainder interest in the four living children, but the absolute estate devised without any particular estate intervening, and a substitution of other devisees by the testator in the event his children or any of them died before he did. Can there be any doubt but that the testator intended his children to take the estate in the event they survived him ? It is insisted by counsel that his purpose was to invest the four children who were the objects of his bounty with an estate for life only, with the fee in their children if they had any, and if none, to the survivors of the tenants in common. Such is not a proper construction of the will of the testator. It might be argued, if required in support of the conclusion reached, that the language used in the latter part of the seventh and last clause of the will sustains the construction heretofore given that instrument. The testator had but four children when the devise was made, all of whom were living at his death, and in making provision for those whom he desired should be the recipients of his bounty (having disinherited his grandchild), after saying “that in case of the-death of either of my children I will that their said interest shall go to their children, if they havo any,” he then
Tire judgment below is therefore reversed and remanded, with directions to sustain the demurrer of appellants to the two petitions, and for proceedings consistent with this opinion.