127 Ky. 514 | Ky. Ct. App. | 1907
Opinion of the Court by
Affirming-
Charles W. Wood, a distinguished lawyer and citizen of Nicholas county, Kentucky, died in June, 1904. He left' a will, which in due time was regularly probated, and his wife qualified as administratrix, and entered upon the discharge of her duties. The will disposed of a considerable estate, and, there being some question raised as to the interest which his wife, Lillie L. Wood, took under said will, she filed a suit in the Nicholas circuit court seeking a construction thereof. All of the other devisees named in the will were made parties defendant to the suit. Upon final hearing, the circuit court adjudged that" Lillie L. Wood, by the terms of the will of her deceased husband, took a fee-simple title to all his property, except that specifically described in .para
The will in question is in words and figures as follows :
“I, Charles W. "Wood, of Carlisle, Nicholas county, Kentucky, do hereby make and publish this as my last will and testament.
“First: I will that all my just debts, including funeral expenses, be paid.
/Second: I will and devise to my sister, Maggie 'Wood Wheelock, of Troup, Texas, during her natural life and at her death to her children, share and share alike, a certain lot of real estate lying and being in the corporate limits of Troup, Smith county, Texas, a part of the Eason Gee League, being the same land conveyed to me by Ben Cross and wife by deed dated March 12,1902, and recorded in said Smith county, in Book 75, page 332, to which deed a reference is made for a more particular description of said land. Said land shall be held by her free from the control and any debts of the husband now living, or which she may hereafter have, and the said land shall not be sold or mortgaged or in any way encumbered as it is now conditioned, or as the proceeds arising from it may hereafter be invested for a period of thirty years. The said land may be sold and re-invested in rent producing real estate but the same shall be done upon the order of .a court of proper jurisdiction, and then only when it shall appear to said court to be to the best interest of the devisees under this section of this will. All accretions in value shall be held and treated as a part of the capital invested.
*519 “Third: I will and devise to my father and mother, J. N. Wood and. Nannie M. Wood, during their natural life, the farm upon which they now reside, including all the farming implements and all the live stock thereon, except one horse named ‘Jack.’ It is my will that at the death of my father and mother or the one surviving the longest, that the income from said farm, or from the property in which the proceeds of it may be invested shall be used to maintain my sisters, Alice Wood, Nettie Wood and Lizzie Wood, so long as they remain single, and in the event of the marriage of any of them, the said income shall be used for the support of the other or others.
“In the event of the marriage of all of them or the death of those unmarried, the said farm or the property in which the proceeds may have been invested shall descend to my brothers and sisters, share and share alike.
‘The property devised under this section of the will shall not be mortgaged or sold except the proceeds be re-invested in rent producing real estate, except so much, not exceeding $2,000.00, as may be necessary to procure a home for the devisees under this section. If so sold it shall be the duty of the purchaser to see that the proceeds are re-invested as herein provided.
‘ ‘ Fourth: I will, devise and bequeath to my wife, Lillie L. Wood, all the remainder of my estate, real, personal and mixed. Said estate consists of 137 1-2 acres of land in Nicholas county, Kentucky, and being the same land conveyed to me by W. T. Buckler and wife on October 29, 1901, and the deed for the same being recorded in Deed Book 19, page 235; also an undivided one-half interest in a tract of 105 acres of •land conveyed to W. B. Ratliff and me by Frank P.*520 Call on July 10th, 1900, the deed for the same being recorded in Deed Book 18, page 279. Beference is made to said deeds for a more particular description of said lands. Also certain houses and lots in Car-lisle , Kentucky, on Main street, the whole block being abutted by Main street on the north, by the property of Cain Brothers on the west; by Sugar Tree alley on the south and by the lot of C. C. Eatliff on the east.
“My personal property consists of stock in the Mutual Trust Company, the Deposit Bank of Car-lisle, Kentucky, and in the Yan Burén Iron and Manganese Company, also my library and other personal belongings.
“All other property, if any, which may not have been specifically named and devised I give to my wife, Lillie L. Wood.
“Fifth: It is my request that my law library be kept intact for a period of five years, and if at that time my brother, B. H. Wood, shows in the judgment of my wife sufficient promise, it is my further request that she give to him the said library.
“It is my further request that should my wife die without heirs of her body, and the estate herein devised to her be intact that with the exception of the sum of $5000.00 she will and devise the remainder to such of my brothers and sisters as may seem proper to her.
“It is my further request that no monument exceeding the price of $250.00 be placed at my grave.
“Sixth: I nominate and appoint my wife Lillie L. Wood as executrix of this my last will and request that she be permitted to qualify without bond.
“It is my further request that no inventory of my. estate be required to be filed, since there is but one*521 legatee or devisee except the special bequests herein provided in sections two and three.
“In testimony whereof I have hereunto set my hand this January 2nd, 1904.”
The testator had no children. He left surviving him besides his wife, appellants, J. N. Wood, his father, Nannie M. Wood, his mother, and his brothers •and sisters, the other appellants. It will be observed that in item 2 of said will he provides a comfortable home for his sister, who was living in Texas, by giving her certain real estate to hold during her natural life, and at her death to go to her children, share and share alike. This clause of the will is so drawn that his sister, even though she desired to do so, could not sell or dispose of, or even encumber this property, which was intended to furnish her a home during her life. In item 3 he makes a commendable provision for his aged father and mother by giving to them the old home farm, with all of its farming implements and stock, save one horse, “Jack,” which he reserved, and in this clause he provided, further, that, upon the death of both his father and his mother, the income from the farm, or other property in which the proceeds thereof might be reinvested in the event of a sale thereof, as provided for in this clause, should be used to maintain his three sisters, Alice Nettie, and Lizzie, so long as they remained single, and, as they married, if any of them should, the income from said farm should be used to support the other or others during the period that they remained single, and, in the event of the marriage of all of them or the death of. those unmarried, then, in that event, the farm or the proceeds thereof should descend to his brothers and sisters, share and share alike. In Item 4 he devises to his wife, the appellee
It is insisted for appellee that, by this clause of the will, she takes the absolute fee-simple title to all of the property described therein; while, on the other hand, it is argued with much force for appellants that item 5 of said will shows clearly an intent on the part of the testator to limit the estate of his wife in the property devised to her to a life estate. The language referred to in item 5 is that, in which he requests his wife to keep his law library intact for a period of five years, and, if, at the end of that time, his brother, B. H. Wood, in her judgment shows sufficient promise, that she should give to him the library, and also the language that in the event his wife should die without heirs of her body, and the estate devised to her be intact, that, with the exception of the sum of $5,000, she should will and devise the remainder to such of his brothers and sisters as to her seemed proper. It is undoubtedly true that under the fourth clause of the will Lillie L. Wood is given the fee to all of the property which her husband owned except that which is specifically devised in items 2 and 3. No stronger language could have been used to give her an absolute estate in said property. In arriving at the intention of the testator, the will must be read as a whole, and each item must be read in connection with every other item thereof,
Prom the reading of these two clauses in the will, the conclusion is. irresistible that the draughtsman knew perfectly well how to create a life estate, for he uses language about which there can be no mistake, words and terms which are susceptible of no double meaning; and, when he comes to that clause of his will which is the subject of contention in this litigation, to-wit, item 4, he uses language by which he shows an unmistakable intention to give to his wife an absolute estate in all of the property described therein.' The question which naturally presents itself, then, is: "What was the purpose of item 5 if it was not to limit in some wise- the bequest made in item 4? It will be observed that the language in item 5 is very different from that which is used in items 2 and 3. Instead of the words “I give,” or “I devise,” he uses the words, “I request,” etc., “that you give,” etc., clearly indicating, that the testator, while recognizing that the property was his wife’s, desired, without attempting to control her action, to let her know what disposition thereof would be pleasing to him under certain conditions and in certain events. It is presumed that the testator intended to dispose
In the ease of Cox, etc., v. Anderson’s Adm’r, 69 S. W. 953, 24 Ky. Law Rep. 721, this court, in construing the following language of the testator, to-wit: “I give, devise, bequeath to S. my wife, all of my cash, notes and lands and bank stock and my other stocks that I may have and also all my live stock, growing crops, house-hold and kitchen furniture, to have and to hold for her own use and benefit. When she, S. is: done with it I give to Mt. Zion Church as an endowment $1,000.00 the proceeds of which are to go paying the expenses of the church” — held that:
We come next to a consideration of the question as to whether or not a precatory trust was created in the will. If the devise is in fee and absolute,precatory words following cannot cut down and destroy the absolute devise. Justice Story, in his work on Equity Jurisprudence (section 1069) says: “The doctrine of thus construing expressions of recommendation, confidence, hope, wish, and desire into positive and peremptory commands is not a little difficult to be maintained upon sound principles of interpretation of the actual intention of the testator. It can scarcely be presumed that every testator should not clearly understand the difference between such expressions, and words of positive direction and command; and that, in using the one, and omitting the other, he should not have a determinate end in view. It will be agreed on all sides that, where the intention
Measured by this rule, we find that the will before us is lacking in all of the elements which go to create á precatory trust. In the first place, the estate is given to Lillie L. Wood absolutely; second, her disposition thereof is unrestricted; third, the devise is not definite, the devisees are uncertain, and the language is such as to indicate a mere desire and could not in any sense be construed to be a command.
For the reasons indicated, the judgment of the lower court is affirmed.