94 Ky. 608 | Ky. Ct. App. | 1893
delivered the opinion op the court.
If, under tlie will of Alexander Stephens, who died in Allen county in 1852, his widow took an estate for life in his realty, then the son of the testator, who died before the widow, was not seized of any part thereof, and his (the son’s) widow is not entitled to homestead or dower. If, however, the widow took an estate in only .one-third of the realty and the son took the remaining two-thirds, as he lived on the land with his mother, his widow would be entitled at any rate to .dower if not to a homestead. The will, after some preliminaries not necessary to notice, and omitting the fifth clause appointing an executor, is as follows:
*610 “Secondly. That I give and bequeath to my beloved wife, Mary Catharine, one-third of my entire estate, real and personal — that is, she is to have all the land during her life.
“Third. I give and bequeath to my son, James Crittenden, the remaining two-thirds of my estate.
“Fomrth. If, in the event of my son’s death in infancy, my will is, that his part go to his mother.
“Sixth. My will is, at the death of my wife, Mary C., then all her aforesaid part to go to my son, James Crittenden.”
The appellants, who were the plaintiffs below, are the widow of James C. Stephens, son of the testator, and her present husband, Thomas L. Young. They insist that the widow of the testator, Mary Catharine, took an estate for life in only one-third of the estate. That this is shown in the succeeding clause giving the son “the remaining two-thirds.” That the words “that is, she is to have all the land during her life,” are words reducing or restricting the devise of one-third that stood as one in fee to a life estate. That the sentence was intended to read: “I give to my wife one-third of my entire estate, real and personal, but she is to have the land thus devised to her during her life only;” and that such must be the construction, if effect be given to the devise to the son of “the remaining two-thirds of the estate,” a devise importing an immediate taking by him in fee.
However plausible this may seem and is, we are constrained to think that the words, “she is to have all the land daring her life,” mean just what they say. Having given her one-third of the estate, real
The remaining two-thirds given the son consist, necessarily, of two-thirds of the personal estate and is taken absolutely. It is all that is left. That which remains is what is left after the wife gets what is specifically given her. He gets two-thirds of the estate “remaining” undisposed of. Should the son die in infancy, “his part,” which is two-thirds of the personalty, is given the mother, and upon her death, according to the sixth clause, her part goes to the son — in accord with the construction giving her a life estate with remainder to the son should he survive her. The son intermarried with the appellant, and died before coming into possession of this remainder interest, and hence she is entitled to neither dower nor homestead.
The only difficulty we have in adopting this construction lies in the fact that by it we restrict the devise to the son in the third clause to an interest only in two-thirds of the personalty; but when we consider the sixth clause in connection with it, giving him the whole after her death, we think the meaning of the testator becomes reasonably plain.
The suggestion is not without force that by the second clause the widow took one-third the land in fee, but was to have the whole land during life. Then
The only question here, however, is whether the widow- took a life estate in the whole. The express words to that effect it seems to us must control, even though they be not perfectly reconcilable with the supposed meaning of some other clause.
Judgment affirmed.