Buschemeyer v. Klein, &C.
| Citation | 139 Ky. 124 |
| Court | Court of Appeals of Kentucky |
| Decision Date | 17 June 1910 |
| Parties | Buschemeyer v. Klein, &c. |
Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).
From the judgment both parties appeal. — Affirmed.
HUMPHREY, DAVIE & HUMPHREY for appellant.
KOHN, BAIRD, SLOSS & KOHN for appellee.
William Klein, whose will is before us for construction in this action, was born in Germany in the year 1839. There he learned the trade of a baker. He came to the United States when he was 18 years of age, and located in Louisville, Ky. In 1863 he married Elizabeth Klink, and in 1864 there was born to him a son, John W. Klein. In 1869 there was born to him a daughter, Mamie Klein, who intermarried with appellant, Charles F. Buschemeyer, in the year 1890. She died in the year 1908, without children. John W. Klein, after quitting school at an early age, went to work in the bakery with his father. In 1887 he was made a partner in the business, which was thereafter conducted under the firm name of William Klein & Son. John W. Klein married in 1889. There was born to him three children, Georgia Klein, John Klein, Jr., and Elizabeth Klein. At the date of the filing of the petition herein Georgia Klein was 16 years of age, John Klein, Jr., 14 years, and Elizabeth Klein 10 years. These grandchildren were all living at the time the testator made the will in question. The will was written on December 1, 1898, and the testator died in the year 1900. At the time of his death the testator had amassed a considerable fortune consisting principally of real estate in the city of Louisville. The will in question is as follows:
`The above bequest to be free from all debts of any kinds whatsoever.
"[Signed] WILLIAM KLEIN, Testator
"Witness
"L. R. McCLEERY
"J. B. COLLINS."
Elizabeth Klein, the testator's wife, survived her husband and died intestate before her daughter Mamie Klein Buschemeyer, who died on March 5, 1908, without children. She left a will which, after making certain specific bequests, contains the following clause: "I devise and bequeath to my husband Charles F. Buschemeyer, all the rest and residue of my property, real, personal and mixed, and wheresoever situated."
This action was instituted by appellant, Charles F. Buschemeyer, against appellees, Georgia Klein, John Klein, Jr., and Elizabeth Klein, to quiet his title to certain real estate described in the petition, claiming that he derived his title to the property by devise from his wife, Mamie Klein Buschemeyer, who died about a year before the suit was instituted, and that his wife derived her title to the property under the will of her father, William Klein. Appellees defend on the ground that the words of defeasance in clause 2 of the will apply to the property devised in clause 3, and upon the death of Mamie Klein Buschemeyer without children, before her husband, the property passed to the appellees. The trial court held that the defeasance clause did not limit the estate devised in clause 2, but did limit the remainder interest devised to Mrs. Buschemeyer in clause 3, and judgment was entered quieting the title of appellees to the property in question. It was, however, adjudged that, inasmuch as Mamie Klein Buschemeyer had a defeasible fee in the property, appellant was entitled to curtesy therein under the authority of Rice, et al. v. Rice, 133 Ky. 406, 118 S. W. 270. From that judgment Chas. F. Buschemeyer appeals. Georgia Klein, etc., prosecute a cross-appeal from so much of the judgment as decrees that the defeasance clause did not apply to the estate devised in clause 2, and from so much of the judgment as holds that appellant has curtesy in the lands in question.
In the case of McClelland's Executrix v. McClelland, 132 Ky. ___, 116 S. W. 730, it is said: etc.
The question for consideration is: Does the language used in clause No. 2, to-wit: "Should Mrs. Mamie Buschmeyer die before her husband Chas. F. Buschmeyer and without any children I want her share even dividet between John W. Klein children when the youngest child comes of age" — apply alone to the property specifically devised to Mamie Buschemeyer in that clause of the will, or was it intended by the testator to apply to only the property devised to her in the third clause of the will, or was it intended to apply to all the property devised by both clauses? It is the contention of appellant that this question must be determined by the position of the clause of defeasance, and that as it occurs in the paragraph marked "2" by the testator, it must be limited in its meaning to the property referred to in that clause. It is appellee's contention that the application of the defeasance clause must be determined by its own language and the apparent intention of the testator, gathered from the will as a whole, and in this regard his relation to the objects of his bounty and his estate, and the circumstances surrounding him at the time he wrote the will, may be taken into consideration.
It is conceded that if the defeasance clause had appeared at the beginning of the will, or in the third clause, or at the end of the will, or had appeared in a separate and distinct clause, it would have limited the estate devised in remainder under the third clause. In arriving at the intention of the testator, Wm. Klein, it must be kept in mind that his education was very limited; that he did not thoroughly understand the use of the English language; that he specifically devised to each of his two children, in clauses 1 and 2, property of the value of $18,000 or $20,000; that the property devised by the third clause of the will was worth about $100,000; and that his intention was to give to his daughter a defeasible fee in all the property devised to her, or in a portion of it. There is no conflict in the provisions of the will. The only question to be determined is: To what property does the defeasance clause, as situated, refer? By the first clause he gave to his son John W. Klein, "in his own name," his part of the business in which he and his son were engaged as partners, and a half interest in a house, No. 728, on the west side of Fourth street, and all the stock in the German Insurance Bank in the testator's name. By the second clause he gave to his daughter, Mamie Buschemeyer, "in her own name," a house, No. 734 Fourth street, and a life insurance policy in the Equitable Life Society of New York. He gave this property to his children "in their own names," by which language he meant to give them the fee-simple title. In our opinion, he did not mean to place any limitation whatever upon the title to this property — he gave it to them in fee. It is conceded that John W. Klein took his in fee, but the contention of appellant is that the next succeeding sentence made the devise to the daughter a defeasible fee. We do not think the testator intended that it should. This was only a small portion of his estate and $5,000 of it was an insurance policy — personalty, a thing that could be easily disposed of and wasted — and it would be strange indeed that this sturdy German intended that his daughter should have only a defeasible fee in it and the house mentioned in the second clause of his will, when by the third clause he devised to her realty of the value of $50,000 or more. It will be noticed that the sentence "Should Mrs. Mamie Buschmeyer die before her husband Chas. F. Buschmeyer, and without children I want her share even devidet between John W. Klein children when the youngest child comes of age," does not refer to the property specifically devised in the second clause of the will. No reference, such as the above property or the property...
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Cecil v. Cecil
...... discard words, to supply or transpose words or even. sentences, phrases, and paragraphs. Buschemeyer v. Klein, 139 Ky. 124, 129 S.W. 551. In the light of these. rules, considering the whole instrument and looking only to. the intention of the ......