Thackston v. Watson

• Citation: 1 S.W. 398,84 Ky. 206
• Parties: THACKSTON v. WATSON.
• Decision Date: 11 September 1886
• Court: Court of Appeals of Kentucky

1 S.W. 398

84 Ky. 206

THACKSTON v. WATSON.

Court of Appeals of Kentucky.

September 11, 1886

Appeal from circuit court, Mason county.

E Whittaker and L. W. Robertson, for appellant, W. D Thackston. Cochran & Son and H. Wadsworth, for appellee Henry D. Watson.

PRYOR J.

William Watson, of the county of Mason, died in the year 1870 leaving a last will and testament, and his widow and H. D. Watson, his only child, surviving him. His will is now before this court for construction. By various clauses of his will preceding those from which this litigation has arisen, he made several special devises, and gave minute and specific directions to his executor as to the control and management of his estate for the benefit of his widow and son. By the eighth clause of the will the executor was directed to rent out the land of the testator to the best advantage until his son arrived at the age of 21 years, and by the ninth clause directed his executor to pay one-third of the net proceeds to his widow, and appropriate the other two-thirds to the benefit of his son as thereinafter directed. By the tenth clause, the testator devised the rest and residue of his estate, real and personal, to his son, Henry Duke Watson, "to be paid over to him, and to be delivered up to him, by the executor when he should arrive at the age of twenty-one years, if he should live that long;" and then proceeded to direct the executor as to the manner of raising and educating him. The son having arrived at age, the executor delivered up to him the estate, and, being vested by the tenth clause just quoted, with an absolute fee, conveyed a part of the land devised to him by his father to the appellant, who now insists that his title is imperfect by reason of the eleventh and twelfth clauses of the will. In the eleventh clause of the will the testator provides that, in case his son should die without bodily heirs, then all testator's real estate shall be converted into money by the executor, and, out of the proceeds, make certain bequests to his relations then living, naming them. In the twelfth clause he provides that, in case his son should die without bodily heirs, the whole estate, after paying the particular bequests, shall be equally divided between certain of his relations therein named.

The appellant maintains that the tenth clause of the will, when construed with the eleventh clause, gives to the son a fee-simple estate, subject to be defeated at any time by the happening of the event, viz., the death of the son without bodily heirs. On the other hand, counsel for the appellee insists that the son took the fee subject to be defeated upon the contingency only of his dying without bodily heirs before arriving at the age of 21 years.

The settled and well-understood construction in reference to such devises seems to be that where an estate is given or devised with remainder over, but, in the event the remainder-man should die without a child or children, then to a third person, the words "dying without children or issue" are restricted or limited to the death of the remainder-man before the termination of the particular estate; and it is equally as well settled that if an estate is devised to one in fee, but if he die without issue, or without leaving a child or children, then to another, the first devisee takes a defeasible fee which is subject to be defeated in the event of his death, at any period, without issue. Birney' v. Richardson, 5 Dana, 424; Pool v. Benning, 9 B. Mon. 623; 2 Jarm. Wills, 506.

Counsel for appellant argues, as no particular estate in interest preceded the devise to appellee, that, under the last rule of construction, the appellant will be deprived of all title by the death of the appellee at any time without leaving issue surviving him. The construction of a will, or any of its provisions, must be controlled by the...