Arterburn v. Emberton

Court of Appeals of Kentucky

Arterburn v. Emberton

336 S.W.2d 333, 1960 Ky. LEXIS 317

DecidedJune 10, 1960

StatusPublished

This text of 336 S.W.2d 333 (Arterburn v. Emberton) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Arterburn v. Emberton, 336 S.W.2d 333, 1960 Ky. LEXIS 317 (Ky. Ct. App. 1960).

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Opinion

PER CURIAM.

This is a motion for appeal from a judgment declaring that Fred Walden took a fee simple title to lands devised under the will of his father. The words of the will were, to “Fred Walden my son and his heirs.”

There is nothing in the will indicating any ambiguity in this language and in the absence of a contrary intent shown therein, the word “heirs” is a word of limitation and not of purchase. Fischer v. Steepler et al., 152 Ky. 317, 153 S.W. 420. Therefore the named devisee took a fee simple estate. Borders v. Skiles, 295 Ky. 670, 175 S.W.2d 353. (In Bell v. Holdbrook, 299 Ky. 843, 187 S.W.2d 433, it was stated that the rule was thoroughly established, although the opinion referred to two statutes whose applicability is questionable.)

The Chancellor correctly ruled that appellants could not introduce extrinsic evidence to show the testator intended to designate “children” when he used the word “heirs.”

The motion for appeal is denied and the judgment stands affirmed.

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PER CURIAM.

This is a motion for appeal from a judgment declaring that Fred Walden took a fee simple title to lands devised under the will of his father. The words of the will were, to “Fred Walden my son and his heirs.”

There is nothing in the will indicating any ambiguity in this language and in the absence of a contrary intent shown therein, the word “heirs” is a word of limitation and not of purchase. Fischer v. Steepler et al., 152 Ky. 317, 153 S.W. 420. Therefore the named devisee took a fee simple estate. Borders v. Skiles, 295 Ky. 670, 175 S.W.2d 353. (In Bell v. Holdbrook, 299 Ky. 843, 187 S.W.2d 433, it was stated that the rule was thoroughly established, although the opinion referred to two statutes whose applicability is questionable.)

The Chancellor correctly ruled that appellants could not introduce extrinsic evidence to show the testator intended to designate “children” when he used the word “heirs.”

The motion for appeal is denied and the judgment stands affirmed.

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336 S.W.2d 333, 1960 Ky. LEXIS 317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arterburn-v-emberton-kyctapp-1960.

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