Anderson, &C., v. Hall's Adm'R, &C.

• Citation: 80 Ky. 91
• Parties: Anderson, &c., v. Hall's adm'r, &c. Crawford v. Same.
• Decision Date: 16 February 1882
• Court: Court of Appeals of Kentucky

Page 91

80 Ky. 91

Anderson, &c., v. Hall's adm'r, &c.

Crawford v. Same.

Court of Appeals of Kentucky.

February 16, 1882.

APPEAL FROM LOUISVILLE CHANCERY COURT.

JOHN C. WALKER FOR APPELLANT CRAWFORD.

GOODLOE, ROBERTS & HUMPHREY FOR APPELLANTS.

CALDWELL & HARWOOD AND BEATTIE & WINCHESTER FOR APPELLEES.

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

Bartlett M. Hall died in the county of Shelby, leaving surviving him his wife and several children. He had been twice married, but left no children by his last wife. He made and published his last will and testament as follows. By the first clause he directed the payment of his debts. The second clause provides: "I give and bequeath to my beloved wife, Mary F. Hall, all my property, including real and personal, of any and every description whatever, giving her the right to sell and reinvest, as she may desire, any part of the same for her own separate use and benefit, and at her death, I desire that any portion of my estate remaining undisposed of shall go to my three daughters, Mary Davis, Annie Harbison, and Amelia Wilson."

The third clause provides: "I have given to my son, Wm. Hall, and my daughter, Valinda Nuckols, more than I am able to give the rest of my children; therefore I give nothing more to them."

And in the last clause he says: "I have given to Mary Davis and Annie Harbison more than I have given to my daughter, Amelia Wilson, and after the death of my wife, Mary F. Hall, I wish Amelia Wilson to first be made equal, and so with each of the other two, Mary Davis and Annie Harbison. I desire that they should come in for their proportion equally, after what they have already received be counted to them and taken into consideration, my object being to let each of these three daughters, Mary, Annie, and Amelia, share alike, and get all my estate remaining after the death of my wife, and after each one of them have accounted for the portion already received," &c. He left his wife sole executrix, who qualified as such, and undertook the execution of the trust. The only estate of much value left by the devisor was a tract of land in the county of Shelby, containing about one hundred and eighty acres. This farm was sold by the widow and executrix, and after applying the proceeds to the payment of the debts of her husband, she had remaining near $7,000. The widow owned no estate, so far as this record shows, except such as was derived under the will of her husband.

It appears from the record that this money she invested in notes upon D. A. Meriwether, and the latter becoming insolvent, his property was sold by an assignee, and the widow, for the purpose of saving the estate, or securing her investment, purchased the house and lot in controversy. Some of the purchase-money due by the widow remains unpaid, and constitutes a lien upon the property; also a mortgage lien of $800 due Mrs. Anderson. This was borrowed to pay on the property, and whether so or not, both the lien note for the purchase-money and the mortgage debt are to be satisfied as against these claimants.

The lot of ground purchased of the assignee of Meriwether by Mrs. Hall was at a cost of $3,000, of which sum she paid $1,000 in cash, and for the balance executed her notes. The widow died in July, 1879, leaving as her only heirs a sister and brother surviving, viz: John Crawford and Kate Anderson. This controversy is between the heirs of Mrs. Hall (the widow) and the children of B. F. Hall by his first wife, each claiming the lot of ground purchased by Mrs. Hall of Meriwether's assignee. The conveyance was made by the assignee to Mrs. Hall in her own right, and for the purchase-money unpaid she executed her individual notes, and as the proof conduces to show, borrowed of Kate Anderson the $800 secured by the mortgage to enable her to pay for the property. It is also, we think, well established that all the payments made on the property, except the $800, were from moneys derived originally from the sale of the tract of land owned by B. F. Hall, and the same directed to be sold by his widow, who was also his executrix. The appellants, who are the heirs of Mrs. Hall, claim that, by the second clause of her husband's will, she was invested with an absolute estate in all the property of the husband, both real and personal, and therefore his children by his first wife had no interest in the land or its proceeds. The children maintain that the widow had only a life-estate, with the right to use such of the proceeds of the estate as might be necessary for her comfortable support. Under our statute, words of inheritance are not necessary to create a fee-simple estate, and unless the deed or will expresses a different intention, the estate will be absolute. Section 7 of article 1 of chapter 63, General Statutes (similar to the Revised Statutes), provides, "unless a different purpose appears by express words or necessary inference, every estate in land, created by deed or will, without words of inheritance, shall be deemed a fee-simple, or such other estate as the grantor or testator had power to dispose of." So, in changing the common law rule in regard to the title to land by deed or will, we are left by the statute to ascertain the intentions of the grantor, either from the express words of the instrument, or the necessary inference resulting from their use. Adopting this rule of construction, we have but little difficulty in arriving at the purpose of the testator from the express language used by him in his will, and if not, his intention is so manifest in each and every provision of that instrument as to leave but little room for construction. The second clause of the will provides: "I give and bequeath to my beloved wife, Mary F. Hall, all my property, including real and personal, of every description whatever, giving her the right to sell and reinvest, as she may desire, any part of the same for her own separate use and benefit, and at her death I desire any portion of my estate remaining undisposed of shall go to my three daughters, Mary Davis, Annie Harbison, and ...