Ball v. Books

300 S.W. 330, 222 Ky. 143, 1927 Ky. LEXIS 866

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: November 29, 1927
• Status: Published

Opinion

Opinion of the Court by

Commissioner Sanmdge

Affirming.

The fifth clause of the will of J. A. Priest reads:

“At the death of my wife, I give to my children, Mildred, James S. and Feturah the remainder of my estate or their heirs share and share alike, except my daughter Mildred is to first have $500 more than James or Feturah.”

The controversy to be settled by this appeal grows out of the use of the words “or their heirs” therein. It is insisted for appellants, who are children of either the Mildred, James S., or Feturah, mentioned, that that language created an estate in them in the property devised by that clause of the will; while for appellees it is insisted that such is not the case, but that the children, Mildred, James S., and Feturah, took the fee in remainder in the lands thereby willed. The language to, be construed is identical with that found in the will of W. B. Blackwell, construed by- this court in Brown v. Blackwell et al., 178 Ky. 797, 200 S. W. 13. It was there, held that the word ‘ ‘heirs, ” used as in the will now under consideration, was a word of limitation and not of purchase. The previous opinions of this court bearing on the subject were cited in that opinion, and the question was there fully discussed. On authority of that opinion and the cases therein cited, we can but conclude that the chancellor properly adjudged that, by the fifth clause of the will of J. A. Priest, his children, Mildred, James S., and Feturah, took the fee in remainder; the word “heirs,” as used in the expression “or their heirs,” being a word of limitation and not of purchase.

The judgment will therefore be affirmed.