Ferguson v. Thomasson

• Citation: 9 S.W. 714,87 Ky. 519
• Parties: FERGUSON et al. v. THOMASSON et al.
• Decision Date: 17 November 1888
• Court: Court of Appeals of Kentucky

9 S.W. 714

87 Ky. 519

FERGUSON et al. v. THOMASSON et al.

Court of Appeals of Kentucky.

November 17, 1888

Appeal from court of common pleas, Scott county; C. S. FRENCH Judge.

Suit in equity by the guardian of J. Eugene Thomasson et al., infant grandchildren of Richard F. Thomasson, deceased, against Alexander Ferguson et al., for a sale of a tract of land belonging to the estate of the decedent, and for a distribution of the proceeds therefrom. The land was sold and this appeal is from the decree directing the distribution of the proceeds. The trial court held that, under the will of R. F. Thomasson, which is quoted in the opinion below, V. H Ferguson, wife of Alexander Ferguson, and certain other devisees of the testator, took only life-estates in the fund. From this decree Alexander Ferguson and wife have appealed.

A Duvall, for appellants.

Frank Chinn, for appellees.

HOLT J.

Richard F Thomasson died testate in 1855, leaving a widow and seven children. His will was made in November, 1844. Subject to the payment of his debts, it gave his entire estate to his wife during her life or widowhood. It made certain provisions for her in the event of remarriage; but they need not be stated as it never occurred. She died in 1884. Three of the children have died since the death of the testator, all leaving children. Four of his children yet survive. The original will contains no provision as to the final disposition of the estate, save as follows: "I give and bequeath to my son, Thomas Benton Thomasson, one thousand dollars more than any of my other children, to be applied to his benefit when it, or any part of it, may be (in the judgment of his mother) convenient and necessary; and, should he die without issue, then his portion to be equally divided among his surviving brothers and sisters, and their heirs, if any there be." In September, 1845, however, the testator added the following codicil: "It is my further will that, if any of my children should die without children or heirs of their body, the estate above devised to them shall be equally divided between my surviving children and the heirs of those that may die, in equal share, as my children." Three, if not all four, of the testator's children, who are yet living, have no children. A considerable tract of land, which the widow held during her lifetime, has been sold in this action, and the question is presented whether the living children of the testator have under the will an absolute or a qualified estate in their proportion of the proceeds. The lower court held that they had but a life-interest, and required each of them, as the condition of receiving it, to execute bond for the forthcoming of it at the termination of such estate. One of them, Mrs. Ferguson, now complains of this, and asserts a right to it absolutely. She contends, first, that the original will contained no devise of any of the estate, save to the widow and Thomas Benton Thomasson; that the other children, therefore, took as heirs at law and by descent; and that they are unaffected by the codicil, because it speaks only of "the estate above devised to them." In other words, it is claimed that the codicil, by reason of the language quoted, must be held to relate only to the devises to the widow and son Thomas. In this view we cannot concur. The will itself, by plain implication, disposes of the entire estate. It in effect says that all of the testator's children are, subject to their mother's right, to have an equal portion of the estate, save the one son is to have $1,000 more than any of his brothers or sisters. This is evidently what the testator meant by the language used; and the codicil makes it perfectly certain. It says: "If any of my Children should die without children or heirs of their body, the estate above devised to them," etc. He undoubtedly understood the original will as making a devise to each...