101 Ky. 252 | Ky. Ct. App. | 1897
delivered the opinion oe the court.
This action involves the construction of a clause in the will of the late Joseph B. Kinkead, which is as follows:
“After the expiration of the said fifteen years, my estate is to be divided among my aforesaid five children, their heirs, assigns, &€., according to the statute of descent.”
The testator had five children, three sons and two daughters; two of the sons and one of the daughters were married, and had children. All his children, (except his married daughter) and his son-in-law were named as executors of his will. It is provided in the will that after the payment of debts, his estate shall be held by the executors for the term of fifteen years; and the income derived from the estate after paying charges and expenses, shall be divided as follows: One-fifth of the net income to the maintenance and education of the children, now living, or that hereafter be born to my son, Peyton S. Kinkead. Similar provisions are made for the children of his son, Robert C. Kinkead, and also for the children of his daughter, Mary O. Warren. One fifth of the net income is to be paid to his daughter, Annie Kinkead, as her sole and separate property, etc.
One-fifth of the net income is to be paid to his son, Obas. S. Kinkead. The testator says that no preference is to be allowed in the above provision touching the income and distribution because of the order in which the children are named; and that the executors may pay the portions of the incomes respectively to the fathers of his grandchildren for boarding and taking care of their children, and he further .says that in the event of the death of either of his sons, the
Had the clause provided that, at the end of the period named, the estate was to be divided among the “five children” no difficulty would have arisen in the interpretation of the will as manifestly it would have vested the children with the fee simple estate. Had the words “heirs and assigns” been used following the words “five children” then, if
Counsel for appellees, in endeavoring to find a meaning for “assigns” suggest that the testator must have meant that if any of his children should survive to the end of the trust, and then have disposed of their interest in the estate by assignment, the assignees of such an interest should take the share of the children so assigning it. This could not have been his meaning, because the instant the trust period expired, the right to a division accrued. It is hardly probable that the testator was intending to make provision for persons to whom his children may have assigned,the estate after the right to a division accrued. If we are correct as to what is meant by dividing the estate among the “five children, their heirs, assigns, &c.,” the inquiry arises as to what is meant by the concluding words of the clause, “according to the statute of descent.” To have entitled the five chib dren to an equal division of the estate it was unnecessary for the testator to have used this language. If we give it the meaning contended for by counsel for appellee, we disre
The judgment is reversed with directions that further proceedings conform to this opinion.