Fox v. Burgher

148 S.W.2d 342, 285 Ky. 470, 1941 Ky. LEXIS 412

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: February 18, 1941
• Status: Published

Opinion

Opinion of the Coubt by

Judge Cammack

Affirming.

This case involves the construction of the following will:

“This is my last will and testament, 1, B. 8. Burgher, being of sound mind do herewith make my last will and testament.

“I wish that my estate be kept intact, as a whole, for fifty years after my death, after the nec éssary expenses of remaining the estate, such as taxes, repairs, etc., have been paid, I wish that the balance of the income be divided between my three children, Alma Sams, Lulie Wilson, J. E. Burgher. In the event of the death of Lulie Wilson I wish that her interest be divided between my other children Alma Sams and J. E. Burgher and in the event of their death, to go to their heirs, I wish J. E. Burgher, my son, to act as Executor of my estate without giving bond.

“In the event of J. E. Burgher’s death I want his son Edmon Burgher to be the executor of my estate but I want him to give bond.”

The trial court adjudged that the provision of the will directing that the “estate be kept intact, as a whole, for fifty years” after the death of the testator was “invalid' and void” and that upon the death of the testator his estate, real and personal, passed to his three children “absolutely and in fee simple.”

The will made no disposition of the corpus of the estate, so it passed to his three children, who were living, at the testator’s death. Section 1393 of the Statutes.

The provision that the “estate be kept intact, as a whole, for fifty years, ” violates Section 2360 of the Statutes and is void. The children might live beyond the period of restraint, but that is not the test. The rule deals with possibilities and not probabilities. Saulsberry v. Saulsberry, 140 Ky. 608, 131 S. W. 491; Tyler v. Fidelity & Columbia Trust Co., 158 Ky. 280, 164 S. W. 939; Perry v. Metcalf, 216 Ky. 755, 288 S. W. 694; Hite v. Barber, 284 Ky. 718, 145 S. W. (2d) 1057. See also Chenoweth v. Bullitt, 224 Ky. 698, 6 S. W. (2d) 1061; Saffold v. Wright, 228 Ky. 594, 15 S. W. (2d) 456; Ligget v. Fidelity & Columbia Trust Company, 274 Ky. 387, 118 S. W. (2d) 720; Holoway v. Crumbaugh, 275 Ky. 377, 121 S. W. (2d) 924.

Judgment affirmed.