Duvall, &C., v. Goodson

• Decision Date: 14 October 1880
• Parties: Duvall, &c., v. Goodson.
• Court: Kentucky Court of Appeals

Page 224

79 Ky. 224

Duvall, &c., v. Goodson.

Court of Appeals of Kentucky.

October 14, 1880.

APPEAL FROM LOUISVILLE CHANCERY COURT.

HARLAN & WILSON FOR APPELLANT.

LANE & HARRISON FOR APPELLANT.

ELLIOTT & ATCHISON FOR APPELLEE.

CHIEF JUSTICE COFER DELIVERED THE OPINION OF THE COURT.

B. F. Crowfoot, at the time of his death, had a certificate of membership in the Kentucky Masonic Insurance Company.

At the time he procured the certificate he was a widower, and had only two living children, Lou May and Anna. Lou May died in the life-time of her father, unmarried, and without issue. Anna married and died, also during the life of her father, leaving the appellant, W. T. Duvall, her only child, surviving.

During the life of Anna, B. F. Crowfoot made his last will and testament, in the third clause of which he devised his residuary estate to his executor in trust to be invested, and to pay the income to Mrs. Duvall during her life, and after her death to be disposed of as directed by the will; but no mention is made therein of the fund to arise from his membership in the insurance company. After the death of Crowfoot his executor and the guardian of the appellant both claimed the money due on account of his membership, and the company filed its petition of interpleader, and paid the money into court. On final hearing, the chancellor adjudged the fund to the executor.

From that judgment this appeal is prosecuted.

Section 10 of the charter of the company provides the manner in which a fund shall be raised which shall "be paid for the benefit of the widow and children" of deceased members, and section 11 reads as follows:

"The fund created in section 9 (section 10 was evidently intended) for the benefit of the widow and children of the deceased member shall be paid to them by said company as soon as it can be collected, or to their trustee, in the discretion of the company, subject, however, to be appropriated for their benefit equally, according to (the) will of (the) deceased member; or if he should leave no widow or child, then to be appropriated according to his will, or if he makes no will, and leaves no widow or child, it shall vest and remain in the company and be added to its capital stock, or be appropriated as they (it) may deem expedient."

Crowfoot left no widow and no child, according to the ordinary definition of the word child, and it is claimed that the contingency therefore existed in which, under the charter, he had power to dispose of the proceeds of his membership by will, and that he has done so by the clause disposing of his residuary estate.

The word child does not ordinarily embrace grandchild. (Churchill v. Churchill, 2 Met., 469; Hughes v. Hughes, 12 B. Mon., 121.)

This question has generally arisen in the construction of wills, and these cases show that there are two classes of cases which constitute exceptions to the general rule, viz:

First. When the will or writing would otherwise be inoperative, or manifest intention would be defeated.

Second. When the will or writing shows by other words that the word was not used in its ordinary and proper sense, but in a more extended sense.

This case clearly does not fall within the second exception. Does it fall within the first?

If we hold that it does not, then when a member dies intestate, and without wife or child, the proceeds of his membership is forfeited to the company, even though he may leave lineal descendants surviving....