Moore's Admr. v. Sleet

Opinion op the court ivy JUDGE BURNAM Reversing. By the terms of the will of W. A. Moore, which was probated in the Woodford county court in the year 1S84, a large estate was devised to his wife, surviving brothers and sisters, and the children of those who had died. Among other bequests, he gave to his wife, Mary J. Moore, 50 acres of land, on which the dwelling house in which he resided was located, with remainder to his nephew and name — 604 — sake, W. A. Moore, Jr., upon certain conditions; and upon this appeal we are asked to construe these sections of the will of decedent which dispose of this 50 acres of land, and which are as follows: “To my faithful and beloved wife, Mary J. Moore, I give fifty acres of the farm on which we now reside, to include the dwelling and improvements, during her natural life. . . . All the property hereby willed to my wife is given to her absolutely, to do with as she pleases, during her natural life, or by will at her death, but to 'be free from the control and debts of any future husband, ’ except the fifty acres, including improvements, which at her death shall go to my nephew and namesake, William- A. Moore, the son of my late niece Jane A. Pollock and John I. Moore. If my wife should die, before said William A. Moore arrives at twenty-one. years of age, then I desire that his father,.-John I. Moore, shall act as his guardian, and manage the same to the best interest of his son William. . . . “To Mary and America, daughters of my niece Jane Moore, I give each one thousand dollars, to be held and managed by their father, J. I. Moore, as their guardian, who shall let the interest on the same accumulate, and be applied in giving them a good education; and in regard to the reversionary interest in the fifty acres of my home place, willed to William A. Moore, the son of Jane A. Moore; if Willie should die before he comes into possession of same, or before he arrives1 at twenty-one years of age,’ then. I desire that the same be sold at the death of my wife, if Willie should then be dead, and one half of the proceeds be divided equally between his two sisters, Mary and America, and the other half shall be divided into four equal parts, and distributed — 605 — each part pro rata among the then living children, or their descendants, of my sister, E. B. Hall, and my three brothers, Jno. P., James Me., and S. M. Moore. ... “Tt is my great desire that my nephew Willie A. Moore shall receive a liberal collegiate education, and be brought up to habits of industry, and I hope his father will furnish him the opportunity and means to accomplish this much-desired object. But if his father and guardian is not able and willing to do this, he may incumber the reversionary interest in the fifty acres of land he will come into possession of at my wife’s death, to accomplish it. But most of all, Í desire that he shall cultivate high moral and religious character. In addition to the reversionary interest in the fifty acres, I will him, W. A. Moore, one thousand dollars, to be used by his guardian in his education.” W. A. Moore, Jr., died in January, 1891, after he had attained the age of 21 years, and left surviving him, as his only child and heir at law, the infant appellee, Mabel Clair Moore, the issue of his marriage to Willie Pugh Miller. The widow of the testator, Mary J. Moore, died in November, 1901, and in January, 1902, the appellant, W. T. Lafferty, qualified as administrator rfe bonis non, with the will annexed, of the estate of William A. Moore, Sr., and as such sold the 50 acres of land and improvements' to one W. E. Sle.et for the sum of $8,800, one-tliird of which was to be paid in cash, and balance in two equal payments, due, respectively, in one and two years from the date of sale, with interest at 0 per cent, per annum from date. The purchaser, Sleet, refused to comply with liis1 contract of purchase upon the ground that appellant had no authority to make the sale, and this action was brought for the purpose of enforcing that, contract. The appellee, Mabel Clair Moore, by her statutory guardian, intervened, and by cross petition sought — 606 — to have the above section of the will of W. A. Moore, Sr.,, construed, and asked that the possession of the property be adjudged to her, and that both Lafferty and Sleet be enjoined from interfering with her title or possessnm thereto. The judgment of the trial court was that' the title and right of possession was in the infant and the administrator dc 7wnis non has appealed. In the first section of the will, which refers to the land in controversy, the 50, acres of land is devised by the testator to his wife for life, and at her death to his nephew? and namesake, W. A. Moore. He adds, “If my wife should die before said William A. Moore arrives at twenty-one years of age, then I desire that his father, John I. Moore, shall act as his guardian, and manage the farm to the best interest of his son William.” In another clause of the will, the testator, in speaking of the 50 acres of land, says, “In regard to the reversionary interest in the fifty acres of my home place, willed to AY. A. Moore, the son of Jane A. Moore, if William should die before he comes-into possession of same, or before he arrives at tw?enty-one years of age, then T desire that the same be sold at the death of my wife, if William should then be dead.” In the first section, the testator provided that, if his wife died during the minority of William, the land should be held by his father as his testamentary guardian until his majority. In the second clause he provides for the contingency of William’s dying during his minority, and in that event,, whether it occurred before or after the death of his wife, he directed that the land should be sold by his executor at the death of his wife. The law? favors the vesting of estate, and unless the intention of the testator, as shown in his will, fairly construed, requires it, an estate once given will not be de — 607 — feated by subsequent provisions of the same instrument. In this case the.fee'in remainder is clearly given by the words, “It shall go to my nephew and namesake,” and the only words which can be construed to take it away are the words, “I desire that in certain contingencies it shall be sold.” Mr. Minor, in his Institutes (volume 2, p. 388), in distinguishing^a vested from a contingent remainder, says: “It is not the uncertainty of ever taking effect in possession that makes a remainder contingent, for to this extent every remainder is and must be liable, since the remainder-man may die without heirs before the distribution of the particular estate. The present capacity to take effect in possession, if the possession were to become vacant before the estate limited in remainder determines, universally distinguishes a vested from a contingent remainder.” And this distinction has been frequently recognized by this court. See Railey v. Milam, 9 R., 110, 5 S. W., 367; Forsythe v. Lansing’s Exr’s, 109 Ky., 518, 22 R., 1060, 59 S. W., 854. If we give a fair and reasonable construction to the language employed by testator in all the clauses of his will in which he refers to this - 50 acres of land, we think it was his intention that his nephew, TY .V. Moore, Jr., should take a vested interest in. remainder therein, subject to being defeated by his death before he arrived at 21 years of age, and before he came into possession of the land. Courts, in the construction of wills, have long exercised the right to give to disjunctive words a conjunctive meaning in cases in which it is necessary to do so in order to effectuate the manifest intention of the testator. See 2 Rop. Leg., p. 290; Hawk. Wills, 203; 1 Redf., Wills, p. 155; Darnell v. Crain’s Guardian, 1 Ky. Law Rep., 354; Taylor v. Meder (22 R., 772) (58 W., 801); Bentley v. Meech, 25 Beay., 197. In the latter ■ease the language of the will and the facts were almost — 608 — identical with those in the case at bar, and the learned chancellor said: “I think this is a case where 'or’ should be turned into 'and,’ and that it was the intention of testator that the gift to the brother should only take effect in the event of his son’s dying in the life of the widow, under age.” We think the interpretation given by the circuit judge to the clauses of the will of testator conforms to the established rules of construction, and the judgment is therefore affirmed.