Fullenlove v. Vaughn

Opinion op the Court by Judge Carroll Reversing. The appellant, Fullenlove, to whom the appellee, (Sarah Vaughn, sold a tract of land containing sixty acres, refused to accept the title, upon the ground that .the Vaughns conld not convey the fee. Whether they could <or not depends on the construction of the will of John Fegenbush, from whom Sarah Vaughn, a daughter of Fegenbush, derived title to the land. The lower court held that the Vaughns could convey the fee, and Fullenlove, in order to have the question finally settled, brings the case to this court. The testator, Fegenbush, in the second clause of his will, after reciting that he had previously deeded to his other children certain described land, said: ‘ ‘ Therefore I desire my daughter, Sarah Vaughn, to have the homestead upon which I reside; containing about sixty acres, upon thé following’ conditions: I have paid $475 in payment for the house and lot upon which Dudley Vaughn now resides in Jeffersontown, Ky., and that amount is to ’be paid hack by said Dudley and Sarah Vaughn to my heirs, and anything more that may be realized by the sale of said house and lot shall go to said Dudley and Sarah Vaughn.” In fhe second clause ¡he gave his cash and cash notes to his widow for life, and after her death to his children, share and share alike. In the fourth clause he said: “I desire that my widow have a home during her life upon the homestead with my daughter Sarah. Further, if my daughter Sarah should die without issue before the death of Dudley Vaughn, her husband, I desire him to have tile use of the homestead during- his lifetime, and at his death it shall revert to my heirs.” It will be observed that, in the second clause of the will, the testator devised absolutely to his daughter, [515] Sarah Vaughn, the homestead of sixty acres, subject to the condition that she and her husband should pay to his other heirs $475, which they have done, so that under this clause standing alone there could be no question raised as to the right of the Vaughns to convey the fee; but in the fourth clause it will be noticed that if his daughter Sarah should die without issue before the death of her husband, the husband is to have the use of the land during his life, and at his death it is to revert to the heirs of the testator. The question is, does the fourth clause limit to a defeasible fee the absolute fee, subject to the condition that has been satisfied, the estate devised in the second clause? We think it does. Items 2 and 4 of the will must be read together, and when so considered the testator plainly expressed his purpose to give his daughter the fee, subject to the condition that if she died without issue before the death of her husband, at the death of the husband the property devised should revert to the heirs of the testator. Under these provisions the daughter took the fee, subject to be defeated by the contingency expressed in clause four. The language used in clause four is plain and unmistakable, and unless this clause should be ignored entirely, there is no escape from the conclusion that the testator intended to limit the estate given in clause two. If there were room for reasonable doubt' as to the intention of the testator, or the will could be fairly so construed as to vest in his daughter the fee, we would adopt this construction, but the meaning of the words employed by the testator leaves no room for a construction other than that expressed in the language used. If the testator had omitted the words in clause four, “and at his death it shall revert to my heirs,” it might well be said that he gave his daughter the fee, subject to a life estate in her husband if he survived her, but by the use of the words indicated the testator put an end to any question that might arise as to his purpose. If his daughter dies without issue before the death of her husband, the husband takes a life estate, with remainder to Ue heirs of the testator, and consequently the Vaughns could not convey a good, merchantable title. 'The judgment is reversed, with direction to enter a judgment in conformity with this opinion.