McCauley, Peacher & Co., &C., v. Buckner, &C.

• Decision Date: 26 April 1888
• Citation: 87 Ky. 191
• Parties: McCauley, Peacher & Co., &c., v. Buckner, &c.
• Court: Kentucky Court of Appeals

87 Ky. 191

McCauley, Peacher & Co., &c., v. Buckner, &c.

Court of Appeals of Kentucky.

April 26, 1888.

APPEAL FROM CHRISTIAN CIRCUIT COURT.

H. A. PHELPS & SON, BREATHITT & STITES, AND C. H. BUSH FOR APPELLANTS.

CAMPBELL & FERGUSON OF COUNSEL ON SAME SIDE.

PETREE & DOWNER AND JOHN FELAND & SON FOR APPELLEES.

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT.

The question in this case is, whether Sarah E. Buckner took under the will of her father, S. Gordon, probated in 1852, an absolute or estate for life in the property devised to her. For, if she had only an estate for life, then her son, H. C. Buckner, has an interest in remainder, which may be subjected to the satisfaction of appellant's debts; otherwise not.

The will is as follows: * Second. I wish my son, William M. Gordon, to have five negroes out of my estate, which shall be equal in value to the following five which were given to my daughter Sarah E. Buckner in the year, 1837; * * and I also give and bequeath to my son the Oak Grove and Waggoner tracts of land. Third. I give and bequeath unto my daughter, Sarah E. Buckner, and the lawful heirs of her body, lands of my estate of equal value to those given to my son William M. If, after the division is made, there should be any landed estate remaining, then I wish such remnant to be equally divided between my son William M. Gordon and Sarah E. Buckner, and the lawful heirs of her body. Fourth. I wish the balance of my estate, real and personal, to be equally divided between my son William M. Gordon and Sarah E. Buckner, and her lawful heirs. It is my wish that F. W. Buckner, the husband of my daughter Sarah E. Buckner, shall not have any control or management over any part or parcel of the property left by me to my daughter Sarah E. Buckner, and her heirs. And I hereby appoint my friend, W. H. Pendleton, trustee for my daughter S. E. Buckner, and her heirs, in the management of the property of my daughter for the benefit of her and her heirs, etc."

"Lawful heirs of her body" under our statutes, as often construed by this court, are words of limitation, import, and unless a contrary intention plainly appears from the will itself, are to be regarded as giving to the devisee an absolute estate. The words quoted are twice used in the will as descriptive of the estate devised to Mrs. Buckner, and the words "her heirs" are used the same number of times apparently for the same purpose. And as the devise to William M. Gordon, son of the testator, is unaccompanied by the same or any...