Galloway v. Durham

Opinion of the court by CHIEF JUSTICE BURN AM Affirming. ' This action was brought in the Hart circuit court for a construction of the seventh clause of the will of George 0. Brooks, which is as follows: “That all the balance of my property, real, personal and mixed, go to my . sister, Susan Brooks; and that she have same; but should she die without issue and leave any of the property at her death given her by this will, then in that event, my sister Sallie Galloway and her children have said property.” After the probation of the will Susan Brooks was married to J. R. Durham, and it is her contention that she takes an absolute fee simple title in the real estate, with power to sell and convey a perfect • title. The defendants, in their answer, claim that plaintiff’s interest in the property was a defeasible fee, subject to be defeated by her death without issue. It was adjudged by the lower court that plaintiff was the owner in fee simple of the several tracts of land' which she she took under the will, and that she had the right to sell and convey a fee simple title thereto, and that defendants, Sallie Galloway and her children took no vested interest in remainder thereunder, and they have appealed. The decision of the question arising upon the appeal turns [546] upon the meaning which is to be given to the words: “But should she die without issue ánd leave any property at her death given her by this will, then, in that event, that my sister Sallie Galloway and her children have said property.” Whilst the clause of the will under consideration does not in express terms confer upon appellee the power to sell and convey the real estate therein devised, this follows by necessary implication, if we are to attach any meaning to the words “leave any of the property at, her death given by this will.” And it is a well settled rule of construction of wills that an estate may pass by mere implication without any express words to direct its course. See 2 Blackstone’s Com., 381. “Necessary implication means, not natural necessity, but so strong a probability of intention that an intention contrary to that which is imputed to the testator can not be .supposed.” 1 Yess & B., 46S. We therefore conclude that testator intend'ed to invest the appellee with the right, if she saw fit, to appropriate the entire estate which passed to her under the seventh clause of his will, if she so desired, and the power to sell and convey for this purpose is necessarily inferred. This being true, it follows, under numerous decisions of this court, that appellee became thereby invested "with the fee, and with full power to convey a fee simple title. This question is fully considered and! discussed in Barth v. Barth, 38 S. W., 511, 18 Ky. Law Rep., 840; Clay v. Chenault, 108 Ky., 77, 55 S. W., 729, 21 Ky. Law Rep., 1485; Ray v. Spear’s Ex’r, 65 S. W., 867, 23 Ky. Law Rep., 1338; Cox v. Anderson’s Adm’r, 69 S. W., 953, 24 Ky. Law Rep., 721; Humphrey v. Potter, etc., 70 S. W., 1062, 24 Ky. Law Rep., 1264. And these decisions are in conformity with the public policy of the State as announced in section 2342 of the Kentucky Statutes of 1903. .For reasons indicated, the judgment is affirmed.