Clay v. Chorn's Exor.

Opinion of the Court by Chief Justice Hobson. Affirming. Mrs. M. W. Churn owned a farm in Bourbon county; also a farm in Montgomery county, .and the question on this ¡appeal is, what interest the children of her sister, Mrs. E. B. Kern, take in 'this land under her will? By the first and second clauses of her will, she directs that her burial expenses and debts are to be paid by her executors; in the third clause she states 'that she has five sisters; that two of them are. in comfortable circumstances, and for that reason she does not leave to them any [272] part of ¡her estate; in the fourth .clause ©he directs that ©o much of the Bourbon county land as may be necessary .to pay a Charge upon it, he used for that purpose; the clause then concludes with- these words.: “And .all the nest of ¡said farm I devise equally to the five daughters; of my deceased sister, Mrs. E. B. Kem, to-wit: Mrs: Louisa Willie Clay, Lake Kem, Mary L. Kern, iSithey B. Kern, .and Chornie F. Kern.” By the fifth clause she gives to the two. daughters of her .sister, Mrs. Hughes, $1,000 each; by the sixth clause ©he gives to- the six children of her sister, Mrs. Kennedy, together the .sum of $4,200; by the seventh clause she gives to James C. Scobee, a great-nephew of her husband, $2,000; the eighth, ninth and tenth clauses of the wilt are in- these words: “8. I give to my nephew, B. Q-. Kern, son of my deceased ¡sister, Mrs. E. B. Kern, one hundred (100) acres of that portion of the home farm of James Chom, which was purchased by me ¡of William Mynheir on February 2nd, 1892; the same to be laid off of that portion ¡of the place lying in the angle made by the junction of the Winchester ¡and Mt. Sterling Turnpike and the Wade’s Mill and Sewell Shop Turnpike. The remainder of said tract uf land I devise equally to the ¡six (-6) children of my said sister, Mrs. E. B. Kem, viz: B. G-. Kem, Mrs. Lou Willie Clay, Lake Kem, Mary L. Kem, Sithey B. Kem and Chornie F. Kem. “9. All ¡of the rest and residue of my property of every kind and wheresoever situated I .devise to the said six (6) children of my sister, Mrs. E. B. Kem. “10. I ¡devise and so- direct that all the property which the six (6) children of my sister, Mrs. E. B. Kem, shall take under the provisions of this will shall be invested in real estate, and that if any of said children die without leaving issue, -the interest of the one so dying shall pass to the others .and to the issue of such of the others as may die leaving issue, -such issue taking the part of their parents. If upon the death of any descendant of my said sister any interest in said property ¿©hall pass to .any other descendant ¡of hers whether by descent or under said clause o-f defeasance, the same shall be held subject to the same condition of defeasance in the event of ¡death without issue until the death of the last survivor of her said six children; and if upon the death of such last survivor there be no issue ¡of my said [273] sister living, then all the said property shall pass- as follows, viz: one-third to the daughters- of my sister, Mrs. Hughes, and the issue -of such of them us may have died leaving issue, such issue taking per stirpes; 'and' two-thirds to .the children of my sister, Mrs. Kennedy, and the issue of such of .them as. may have died leaving issue, such issue taking per stirpes.” Under the fourth clause of -the will if nothing more was udded the five 'daughters of Mrs. Kern would take the remainder of the Bonrbon county land in fee ©imple; and SO' under the ¡eighth clause if 'that .stood .alone R. G. Kern would take the 100 acres devised to him in fee .simple', and the six children of Mrs E. B. Kern would take the remainder of that -tract in fee simple. But it is insisted that the tenth clause changes all this. We do not think the will -should he so construed. The testatrix ¡evidently -had in mind the devising of the remainder of the Bourbon county land to the five daughters of Mrs. Kern and 'the devising to R. G. Kern of 100 acres, and when she made these specific devises, it is- not to be presumed that in a subsequent p-art of her will she intended a different disposition of the -estate' unless ‘the language used unmistakably so indicates. The language of clause ten does ¡not seem to. refer to the land which had been previously devised. By that clause' she directs that all the property which the six children of Mrs. Kern shall take under the provisions of the will shall he invested in real estate. This language taken in its natural meaning must refer to her personal property; for she is¡ evidently imposing a duty upon her executors to make the investment. She certainly did not mean that the land which she had devised should go into the hands of the executors for ary purpose; and the- direction that the property shall he invested in real estate, cannot with .any propriety, be applied to. anything hut the personal property. By the ninth clause she devised all the residue of her property to the six children of her sister, Mrs. Kern, and the- tenth clause appears to have been added to provide for the investment of the property passing under the residuary clause. The testatrix devised only personalty to the children of Mrs. Hughes and' Mrs. Kennedy. -She devised no land to them, and she makes them the persons Who are to take the property under the tenth clause if the Kerns .all die without issue. The thing she apparently had in mind was the: preserving of the residuary estate [274] for them on the failure of the Kern line. She -devised no personalty to- the Kern children except in clause nine, an-d the tenth -clause was- -designed to prevent this personal estate from being -dis-sipated. An estate, once given in fee will not be defeated by a subsequent provision in the same- instrument limiting it to -a smaller estate unless the language of the instrument -o-r the intention of the te-stator requires it, and when upon the consideration of the whole instrument, the mind is in doubt as to- what estate was intended to- pass, that construction will toe adopted which passes the fee. (Burnam v. Suttle, 148 Ky., 495; Edmonds v. Cave, 150 Ky., 272.) The chancellor held that the -six children of Mrs. Kern took a fee in the land -devised to .them, and in this conclusion we concur. Judgment affirmed'.