Mitchell v. Simpson

10 S.W. 372, 88 Ky. 125, 1889 Ky. LEXIS 4

• Court: Court of Appeals of Kentucky
• Decided: January 15, 1889
• Status: Published

Opinion

JUDGE BENNETT

delivered the opinion op the court.

The sole question in the case is, what is the proper construction of the third clause of Jessie Hall’s will, which reads as follows: u I give to my daughter, Anna Simpson, one hundred and sixty acres of land lying in and around Centerville, Ky. Said land is allotted to her and valued at fifty dollars per acre. I also will her two hundred acres of land in Scott county, Ky., off of what is known as sheep farm. Said land is allotted and valued to her at eighteen dollars and fifty cents per acre. The said land is willed to my daughter and her bodily heirs, except the two hundred acres in Scott county, Ky., which she is to have the right to dispose of as she wishes.”

The fourth clause of the will contains a devise to his daughter, Paulina Henry, in_which is this language; “Said lands I will to my daughter, Paulina, and her bodily heirs, excepting the last two named tracts, which she may sell if she wishes.”

The estate which he devises to his son, James P. Hall, is devised to him absolutely.

It is well settled that the words “heirs of the body,” “heirs lawfully begotten of the body,” and other similar- expressions, are appropriate words of limitation, and must be construed as creating an estate tail, which, by our statute, is converted into a fee simple, unless, from the entire will, it reasonably appears that the testator used said words, not in their technical sense, but as synonymous with the word “ children.” If said words are used in the latter sense, then they are construed as words of purchase, and not in the technical sense as words of limitation, which are construed by our statute as conveying a title in fee to the immediate devisee.

In construing the language of this will, it appears, at first blush, that the testator was endeavoring to create a life estate in his daughter, Mrs. Simpson, with remainder to her children, in the land lying around Centerville, and that he used the words “her bodily heirs” as synonymous with the word “children,” as expressive of that intention.

The question in the case of Righter v. Forrester, 1 Bush, 278, arose on the construction of a will similar to this in the particulars above mentioned, in which, it was held that the words “bodily heirs” were used by the testator in the popular sense of children, and that they took under the will as purchasers. Said case clearly distinguishes the case at bar from the case of Johnson v. Johnson, 2 Met., 331.

We think that the words “ bodily heirs ” were used by the testator, Hall, in the sense of children, and' that Mrs. Simpson took a life estate in the land lying around Centerville, and her children took a remainder interest therein.

The judgment of the lower court sustaining the demurrer to the appellant’s answer is reversed, and the case is remanded for further proceedings consistent, with this opinion.