Walters v. Neafus

125 S.W. 167, 136 Ky. 756, 1910 Ky. LEXIS 539

• Court: Court of Appeals of Kentucky
• Decided: February 15, 1910
• Status: Published

Opinion

Opinion op the Court by

Judge O’Reab

— Reversing.

The last will of John L. Cross, probated in November, 1879, is in these words:

“In the name of God — Amen:

“I, John L. Cross, being weak in body and being conscious of the uncertainty of life and the certainty of death and being of sound mind and disposing memory, and being desirous of disposing of that portion of this world’s goods that it has pleased God to bless me ■with and in the way I desire and to those to whom I wish I do by these presents make and publish this my last will and testament, hereby revoking all former wills by me made, and hereby disposing of my property and effects in the following manner, viz.:

“Item 1. I desire that my body after my death shall be decently buried in good style and shall be buried next to my second wife in my grave lot purchased by me and that suitable head and foot stones be placed at my grave such as my wife shall desire.

“Item 2. I desire that all of my just debts of every character be first paid out of my estate before any division is made.

“Item 3. I give and bequeath to my daughter, Sarah Walters and her husband, B. F. Walters, in full of their part of my estate the following notes and rent bond the last of which I paid off for said Walters and the two notes the said Walters owes me. Cue of said notes is for $46, dated March 29, 1870, due one day after date, the other for $68.60 dated Aug. 10, 1866 and due 10th day of May, 1867. The rent bond is for $100, paid by me as surety to A. F. Smith Jan. 13, 1870. One of said notes is credited by $12.68 paid December 17, 1867.

“Item 4. I give to my grand-daughter, Sal lie Brownfield, a watch and chain, the value of two hundred dollars, and in order to raise the money for that purpose I desire that my executor hereinafter appointed shall sell or swap the watch and chain I have now and raise so much as it will and then he will pay the difference so as to purchase the watch and chain aforesaid and the same is to be selected by him.

“Item 5. I give and bequeath to my beloved wife, Sallie C. Cross, my horse and buggy and harness and cow and the four hogs and six pigs, and I give to lier all of my household and kitchen furniture of every description also one forty blade cutting box and all the feed that is on hand at my death. I also give to my beloved wife my house and all the land connected therewith situated in ITodgenville on the north side of Water street, during her widowhood and occupancy of said property, but should she marry and abandon the occupancy of said property then said house and lot are to be sold and the proceeds of said property is to be equally divided and one-half to go to her and the other half to go to my daughter, Elizabeth E. Brownfield. I also give to my wife all my farming utensils and tools on hand also all the soap and tubs and things in the meat house. I also give to my wife all the commissions and percentage that is coming to me from all the estates that I am either guardian or administrator of and direct my executor to pay the same to her when collected. I also give to my wife all the bees and gums and all the poultry on hand.

“Item 6. I hereby nominate and appoint my friend I. W. Twyman as my executor of this my last will and the court is requested to allow him to qualify as such without giving security. And my executor is directed to collect all notes and accounts as fast as they fall due, and I direct him to pay one-half of the proceeds of said notes and accounts as fast as collected to my wife, Sallie C. Cross, and the other one-half to my daughter, Elizabeth Brownfield all of which I give to them and is to be divided as aforesaid. This gift includes all my cash and cash notes and accounts of every description subject to my debts and expenses of administration and the devises above named except also I give to my wife a note on Jack Perry for $40. I also give to my wife one saddle bridie and one set of plow gears. I desire that the proceeds of all the property sold by my executor be equally divided between my wife and my daughter, Elizabeth Brownfield also any property or money not mentioned herein.

“Item 7. For the kind regard and friendship shown me by my friend I. W. Twyman I give to him my one-half of the fire-proof safe now in the office of Read & Twyman to be his own property he owning the other one-half.

“In testimony whereof I have hereunto set my hand and signed my name this 16th day of Aug. 1879.

Joi-in L¡. Cross.”

The widow of the testator did not remarry and continued to live upon the lot devised by the fifth clause of the will until her death in 1909. She had no issue.

The testator had but two children, one the appellant, Sarah Walters, the other Elizabeth Brownfield, who also survived the testator, but died before his widow, Sallie C. Cross, died. She left three daughters as her issue, who brought this suit to recover the possession of the house and lot devised by the fifth clause of the will, claiming that under the will Elizabeth Brownfield took the estate in remainder, and at her death intestate it descended to them as her heirs at law. The collateral kindred of Sallie C. Cross were made defendants. They assert that Mrs. Cross took a defeasible life estate in .the whole of that lot, her life estate subject to be defeated by her remarriage or abandonment of the property as a home, in which latter events, or either of them, she took a fee in one-half the property, and in any event that she took the fee in one-half of it under what is termed the residuary clause of the will, being item 6. Sarah Walters was also made a party. She contends that the testator died intestate as to the remainder estate in the house and lot in Hodgenville, and that she and Elizabeth Brownfield each inherited one-half of it subject to the life estate of the widow; or if it be construed that Elizabeth Brownfield took one-half of that property in fee as a devisee under the will, then that the testator died intestate as to the other half, and that she, Mrs. Walters, inherited that half as heir at law by virtue of a statute of this state.

The presumption is that testator intended to dispose of his entire estate. Howard v. Cole, 124 Ky. 815, 100 S. W. 225, 30 Ky. Law Rep. 1027; Thomas’ Exr. v. Thomas, 110 S. W. 854, 33 Ky. Law Rep. 700; Newcomb v. Fidelity Trust Co., 108 S. W. 911, 33 Ky. Law Rep. 41; Trusty v. Trusty, 59 S. W. 1094, 22 Ky. Law Rep. 1127; Mayes v. Karn, 115 Ky. 264, 72 S. W. 1111, 24 Ky. Law Rep. 2110.

The terms of the will before us manifest that purpose. That construction should be adopted, therefore, if possible, which effectuates that purpose. But it must always be borne in mind that the intention of the testator to dispose of his entire estate is a rule of construction only, and not a warrant for disposition by the court; for, although the testator may have intended to dispose of his whole estate, and although his intention must prevail where practicable and not unlawful, yet he must have done so by the terms of his will, construed as the language used reasonably justifies. The testator here minutely described his personal and real estate, and clearly indicated the persons to take. In the clause relative to his real estate he gave his widow the life estate in the whole of it, subject to be defeated by either of two acts on her part — one, should she marry again; the other, should she abandon the property. Should she elect to terminate her life estate by either of the courses suggested, then the testator devised the remainder over, one-half to his said widow, and the other moiety to his daughter, Mrs. Btownfield. He did not, however, provide in express terms what disposition should be made of the remainder estate should the life tenant remain his widow and not abandon the property as her home. The law seems to be well settled that, where a remainder estate is created, the remainderman will take immediately on the falling in of the life estate whether by the death of the life tenant, or by the defeasance of the life estate during the life' of the life tenant, although neither of those contingencies are by the will expressly noted. Aulick v. Wallace, 12 Bush, 531; Wilder v. Wilder, 86 S. W. 557, 27 Ky. Law Rep. 715; Dunlaney v. Dunlaney, 79 S. W. 195, 25 Ky. Law Rep. 1663; Davie v. Davie, 81 S. W. 246, 26 Ky. Law Rep. 314.

Mrs. Brownfield took a half of the real estate as remainderman under the will, which descended upon her death intestate to her heirs at law, the appellants. Where, then, vested the other half? Not in Mrs. Cross. One can scarcely be a remainderman to his own life estate. The contingency of the life tenants dying without defeating her life estate is expressly provided for in the will. She is given a life estate only in the whole of the realty. The contingency of her electing not to remain on the land or to remarry is also provided for. In that event she would take one-half the land in fee. Therefore every contingency possible with reference to her was expressly provided for in plain terms. An express provision, evidencing such careful consideration, .ought not to be overturned by implication based upon a vague, general expression elsewhere in the will. The rule is specific directions prevail over general directions in case of conflict. Mrs. Cross’ heirs at law contend that by the last sentence of the sixth clause she takes the fee ifi one-half the remainder estate in the land. That clause reads: “* * * I desire that the proceeds of all ray property sold by my executor be equally divided between my wife and my daughter Elizabeth Brownfield, also any property or money not mentioned herein. ’ ’ The testator was very careful, as will be noted, to specify, the property in detail which the wife was to have." It is evident he intended to provide for her comfortable support so long as her condition remained as it was immediately after his death. Those things that she was to take absolutely, not dependent upon her continuing as his widow, and, as constituting his provision for her sustenance, he was careful to particularize, so far as they were of enough magnitude to be remembered. As to her interest in his real estate, there is not room for speculation as to what he meant. By the expression “also any property or money not herein mentioned,” he evidently had in mind those inconsiderable items of property of which he then could not remember, and which therefore had not been mentioned. It was a residuary clause intended to dispose of a residuum of the class just enumerated, and which was of doubtful existence. He was speaking then of things which the executor was to sell, of property not specifically devised, and money and money debts which the executor had not the power to sell. These things the wife was then to have — immediately — for her own use and enjoyment. She was the object of bounty being provided for. Her comfort was the subject of his providence. Knowing that after her death she could not enjoy, could not be possibly benefited by a devise to her to then take effect, it would be a strained construction to say that he nevertheless so intended; for that would have been disposing of one-half of his real estate, after his widow’s death, to strangers to his blood, unknown to him, perhaps, some of them may be born when the will was written and none of them named, described, or alluded to as possible -objects of his care. As they alone could be benefited by such a disposition of his property if he had so intended, it is likely he would have so expressed it. It is noted that whenever he gave anything by the will, even of insignificant value, he always named the person to take by name and not by class. Whatever other doubts we have concerning the proper construction of this document we have none that testator never intended or suspected that his widow would, if she lived on the land as his widow until her death, get inore of it than a life estate in the whole of it.

Construed according to the law of this state, the remainderman named, Mrs.. Brownfield, took only one-half of the estate when the life estate terminated. The testator nowhere indicated that she was to have more than one-half of his land. Curiously he omitted to say where the other half should vest upon the termination of the life estate. The presumption against intestacy as to any part of the estate vanishes when the fact becomes apparent that some part of it was hot disposed-of. In no event can that presumption supply an omission to devise a parcel of the estate. Nor is the clause of the will excluding Mrs. Walters effectual. The laws of inheritance are enacted by the Legislature. If one dies intestate as to any of his property the'law says who shall take it. The testator had not the power to change the laws of descent hy his will. He might dispose of his property as he pleased within certain limitations, even to the exclusion of his heirs, hut, unless he disposed of his property hy will, what is undisposed .of the law distributes. Todd v. Gentry, 109 Ky. 704, 60 S. W. 639, 22 Ky. Law Rep. 1319; Franck v. Franck, 72 S. W. 275; Clarkson v. Clarkson, 8 Bush, 655; Page on Wills, 548; Tabor v. McIntire, 79 Ky. 505, to the contrary, was overruled by Todd v. Gentry, supra.

Appellants, Mrs. Brownfield’s heirs claim that, if the testator died intestate as to the remainder in the one-half of this land, that half descended equally to Mrs. Y/alters; and Mrs. Brownfield’s descendants— to each a one-fourth of the whole. But section 1407, Ky. Stat. (Russell’s Stat. Sec. 3822), intervenes there, providing: “Any real or personal property or money, given or devised by a parent or grand-parent to a descendant, shall be charged to the descendant or those claiming through him in the division or distribution of the undevised • estate of the parent or grand-parent, and such party shall receive nothing further therefrom until the other descendants are made proportionately equal with him, according to his descendable and distributable share of the whole estate, real and personal, devised and undevised.”

The-judgment of the circuit court gave to the heirs at law of Mrs. Sallie C. Cross one-half of the lot mentioned in the fifth clause of the will, and to the heirs of Mrs. Elizabeth Brownfield the other half. Mrs. Sarah Walters prosecutes this appeal. Mrs. Brownfield’s heirs prosecute a cross-appeal. To ad,iuslí the rights of the parties, it is necessary to reverse the judgment, which is done, and the cause remanded, with directions to enter a judgment in conformity herewith. ■