McClelland's Exr. v. McClelland

116 S.W. 730, 132 Ky. 284, 1909 Ky. LEXIS 121

• Court: Court of Appeals of Kentucky
• Decided: March 5, 1909
• Status: Published

Opinion

Opinion of the Court by

Judge Nunn

Reversing.

The question involved on this appeal is the eon-st ruction of Byron, McClelland’s will, which is as follows:

“I, Byron McClelland, of Lexington, Kentucky, wishing to revoke all former wills and testaments, being of sound mind, uninfluenced by any other desire than to dispose of my property as to me seems best, do declare this to be my last will and testament. I wish my just debts to be promptly paid. • I bequeath to my brother Wallace McClelland or his children, if he be dead (excepting Prances), ($5,000) five thousand dollars. I also bequeath to my sister, Shishmanian, (or) her children, if she be dead, ($5,000) five thousand dollars. I bequeath all the residue of my estate both real and personal, or of any other description to my wife, Sallie, forever; but charge this residue which I give my wife with the following bequests:

“First. To pay my broker J. W. McClelland ($30) thirty dollars per month as long as he may live.

“Second . To pay to my niece, Prances McClelland, $10,000 on the day of her marriage for her sole and separate use.

“Third. That at my wife’s death her executors or administrators shall turn over to my brother, Wallace McClelland, and my sister, Mrs. Lucy Shishmanian, or their children if either or both are dead( excepting Prances McClelland, my niece ( one-fourth of whatever remains of the residue of the estate that I had bequeathed to my wife, Sallie, forever.

‘ ‘ Fourth. That at my wife’s death her executors or administrators shall turn over one-half of whatever remains of the residue of my wife, Sallie, forever, to my niece, Prances McClelland, for her sole and separate use.

“Fifth. The remaining one-fourth of residue I left my wife, she may dispose of by will or if she makes no will to follow the law of descent.”

The cardinal rule for the construction of wills is to ascertain from the whole instrument, if possible, the intention of the testator, and in all eases to give effect to such intention, if it can be done without violating any provision of the law. There is no pretense that any provision of this, will undertakes to create a perpetuity or to entail any part of the testator’s estate, which cannot be done without violating the statute of Kentucky. The only contention of appellants is that Byron McClelland bequeathed all his estate, except that devised to his brothers and sister, to his wife in fee, and that the after devises over to his niece, brothers, sister, and other descendants are void under the authorities of Clay v. Chenault, 108 Ky. 77, 55 S. W. 729, 21 Ky. Law Rep. 1485, the cases therein cited, and others adopting the same rule. This court has repeatedly decided that it is proper to consider the environments and the natural objects of the bounty of the testator, at the time of the making of the will, to enable the court to arrive at the intention of the testator in- the construction of the will. It appears from the record that, at the time of the making of the will under consideration, Byron McClelland • owned property of the value of about $200,000. Appellant Mrs. McClelland and the testator had no children, but had living with them at the time of the making of the will at the death of Byron McClelland the infant appellee, Frances McClelland, his niece. She lived with them as one of the family from her infancy to his death. She was the daughter of Wallace McClelland, the first devisee mentioned in the will. The testator had one sister, Mrs. Shis'hmanian, and two brothers,' Wallace McClelland, a farmer residing in Fayette county, and J. W. Mc-Clelland, who was a sufferer from some mental derangement. It appears that all the natural objects of his bounty were provided for in his will. Appellant’s contention, in short, is that by the will of Byron McClelland he devised absolutely all the residue of his estate to his wife; and, this being true, his attempted devise of the estate remaining at her death, to his niece, brothers, and sister, is void. The first question is: Does the language of the will show that the testator had such intention? If not, does the language used by him in expressing his intention compel this court to give it such a construction?

Section 2342, Ky St., is as follows: “Unless a different purpose appear by express words or necessary. inference, every estate in land created by deed or will, without words of inheritance, shall be deemed a fee simple or such other estate as the grantor or testator had power to dispose of.” Recognizing the universal rule which is to the effect that the intention of the testator must control, unless it contravenes some established policy of law, and that technical rules of construction will not be allowed to defeat the plain intention of the testator, and that every clause in a will must be taken with reference to the others, we are of the opinion, that Byron McClelland intended to and did bequeath to his wife only a life estate in three-fourths of his property, and the fee in one-fourth thereof, with full power to sell and dispose of so much of it, or of the whole of the property, should it become necessary for her support in comfort during her life. This is not only a necessary inference from the provisions of the will, but such intention on his part is manifest. • Byron McClelland did not desire to' confine his wife to the income from-his estate, if it should become insufficient to support her in comfort, but intended that she should have so much' of the principal as might become necessary for her comfortable maintenance. However, he did not intend that she should waste it and defeat the natural objects of his bounty, provided for in his will. It is true that the testator, after first making a devise to his brother and sister, bequeathed Ms estate,, both real and personal, to his wife, Sallie, “forever,” which would have passed a fee-simple title to her, if no other words had followed showing a different intention. The words that follow the word quoted are: “But charge this residue which I give my wife with the following bequests:” The first being that she pay to his brother, J. W. McClelland, $30' per month as long as he may live. Second, that she pay to Frances McClelland on the day of her marriage, $10,000. Third, after her death her executors or administrators shall turn over to his brother Wallace and1 his sister, Mrs. Shishmanian, or their children, if they be dead, except Frances McClelland, one-fourth of whatever remains of the estate that he devised to his wife. Fourth, one-half of what remains, at his wife’s death shall be turned over to his niece, Frances McClelland. Fifth, the remaining one-fourth, if not disposed of by his wife by will, to follow the law of descent. These after devises show clearly and unmistakably that the testator intended to and did limit the devise to Ms wife to a life estate.

Appellants contend that the use of the expression in the will, “to my wife, Sallie, forever,” and the like expressions in the third and fourth clauses of the will clearly import a fee-simple estate in the wife. The word “forever” adds but little, if any, to the strength of the bequest. If the words following the word “forever” had been omitted, and the testator had used no words showing his intention to limit the estate given his wife, she would have taken a fee therein, even though the word “forever” had been omitted. See the section of the statute above quoted. We cite the following authorities to show that the provisions of the will created a life estate only in appellant: Smith v. Bell, 6 Pet. 68, 8 L. Ed. 322; Cox v. Sims, 125 Pa. 522, 17 Atl. 465; Harbinson’s Admr. v. James, etc., 90 Mo., 411, 2 S. W. 292; Coat’s Ex’r v. L. & N. R. R. Co., 92 Ky. 263, 17 S. W. 564, 13 Ky. Law Rep. 557; Page on Wills, section 459; Anderson, etc., v. Hall’s Adm’r, 80 Ky. 91, 3 Ky. Law Rep. 579. In the last case the provision of the will under consideration was as follows: “I give and. bequeath to my beloved wife, Mary F. Hall, all my property, including real and personal, of any and every description whatever, giving her the right to' sell and reinvest, as she may desire, any part of the same for her own separate use and benefit, and at her death, I desire that any portion of my estate remaining undisposed of shall go to my three daughters, Mary Davis, Annie Harbison, and Amelia Wilson.” In construing this provision the court said: “The words, ‘the estate remaining undisposed of shall go to my three daughters,’ follow directly after the power to sell and reinvest; and while the right to use and dispose of the estate by the wife for her comfortable support may not be limited to the income, it. is manifest that this testator thought he was making some provision for his children, and doubtless would have been surprised if, after writing his will, he had been told that all the care taken with reference to the advancements he had made to each of his children, and his desire that the others should be made equal, amounted to nothing, as he had given to' his wife in fee simple the entire estate. He had: confidence in his wife, and believed that she would use no more of his estate than was proper and necessary for her own maintenance. We see no reason why a life tenant may not be invested with the power to sell, and with the additional power to use so much of the principal as might be necessary to maintain him.. We do not construe this will as giving to the wife an unlimited dominion over the estate. She had no power to give it to another, or even to waste it in extravagance for the purpose of depriving these children of their interest in it. This is not the case of an absolute gift or the devise by the testator of an estate in fee to the wife, and then an attempt to defeat the devise by a limitation over.” Again, in the same opinion, the court said: “The real question is whether the express language of the will, or the necessary inference from it, leads to the conclusion that the testator intended to create a less estate in his wife than a fee simple. We are aware of the im-' portancé attached to the words of inheritance used in a deed or will in determining the character of title acquired; but in a case like this, as in fact in all wills, the intention of the testator must have a controlling influence, and to determine that the devise to the wife in the will before us is inconsistent with the devise to the children would be to defeat the plain intention of the .testator expressed in each sentence of the will, and give the proceeds of his land to those who are strangers in blood and without claim upon his bounty.” .

Appellants’ counsel contend that Mrs. McClelland was given power by the will to sell and dispose of the whole estate devised to her, and thus defeat the claim of the remaindermen, and that therefore the fee in the property vested in her, because such power is inconsistent with and repugnant to a life estate, and refer to the cases of Moore v. Webb, 2 B. Mon. 282, Caleb v. Field, 9 Dana, 346, and Clay v. Chenault, supra, in support of the contention. If the construction of the will given it by appellants were correct, there is no doubt but what they sustain the proposition. In the case last named the court said': “It seems to us that the decided weight of authority, if, indeed, there be any to the contrary, is to the effect that a will or deed giving to the vendee or devisee full power to sell and convey passes the absolute fee, and that any provision or devise (over) is absolutely void for the reason that it is inconsistent with or repugnant to the fee, and it is wholly immaterial whether the power to sell or dispose of the property shall have been exercised or not.” This authority, however, does not apply to the case at bar, because there is no express power given Mrs. McClelland enabling her to sell or dispose of the property. Such power, if any exists, can only be implied from the words “whatever remains” in the third and fourth clauses of the will. From the use of these expressions, it is evident that the testator thought that a portion of his estate would remain at the death of his wife after she had used the income from it and as much of the principal as was necessary to support her comfortably. In our opinion the use of the words referred to do not imply an absolute and unlimited power on the part of Mrs. McClelland' to dispose of the property; but, on the other hand, implied only that she have such power, if necessary, to enable her to subsist comfortably. The very fact that by his will he gave her the right to dispose of only oneMourth of what remained at her death, after using the estate for the purposes mentioned, by will, shows a purpose on the part of the testator to limit her right of disposition. In the case of Anderson v. Hall, supra, this court determined that only a life estate was given the devisee by the use of the words: “At her death I desire that any portion of my estate remaining undisposed of shall go to my three daughters.”

We are of the opinion that the lower court erred in adjudging that Frances McClelland, the niece of the testator, took a vested interest in the $10,000 devised under the following clause of the will, to wit: •“Second. To pay to my niece, Frances McClelland, $10,000 on the day of her marriage for her sole and separate use.” In our opinion Frances McClelland took nothing, in prsesenti, by this clause. Her right to it depends upon her marriage, and when that day comes she is entitled to it, but not before.

For this reason, alone, the judgment is reversed .and remanded for further proceedings consistent herewith.