Augustus v. Seabolt

• Decision Date: 06 October 1860
• Citation: 60 Ky. 155
• Parties: AUGUSTUS, ETC., v. SEABOLT, ETC.
• Court: Kentucky Court of Appeals

60 Ky. 155

AUGUSTUS, ETC., v. SEABOLT, ETC.

Court of Appeals of Kentucky.

October 6, 1860

A testator bequeathed to his wife his farm " during her natural life; " also, two slaves (naming them) " during her natural life, should she remain a widow " also, " during her natural life, " sundry articles of personal property naming them. The will then proceeds: " It is my desire that in case my beloved wife shall marry, she is only to hold that part of the tract of land and farm which lies eastwardly of the lane and road leading through the plantation. After that event may take place, the balance of the devises made to her are not to be affected by the circumstance of her intermarriage." The testator then directs a sale of his personalty, except that devised to his wife, and if it be sufficient for the payment of his debts he bequeaths to her, " during her natural life, " a negro man, Aaron. " Item: I give and bequeath the real estate and slaves herein devised to my beloved wife during her natural life, after her death to be equally divided between the lawfully begotten children of my brothers John, David, Jacob and James, or such of them as may be living at the time of her death, or the said slaves and real estate to be sold and the proceeds to be equally divided among said children, as aforesaid. " There is no residuary clause in the will. The widow married, and is yet alive. Held: that the heirs at law are entitled, by descent, to the land " lying westwardly of the lane," as designated in the will, from the period of the marriage of the widow of the testator until her death, when the devisees in remainder under the devise to them will be entitled.

The intention of the testator must be gathered from the instrument itself whenever it is possible to do so. Every word is to have its effect, provided an effect can be given to it not inconsistent with the general intent of the whole will when taken together; and no word is to be rejected unless there can not be a rational construction of the will with the word as it is found. Nor is it necessary to take all the words in the order they are, as the courts may range them in a different order and transpose them to comply with the intention. But in no case, where the words are plain and sensible, is a transposition to be made in order to create a different meaning and construction, much less to let in different devisees and legatees; nor where a former clause is express and particular, shall a subsequent one enlarge it.

When a testator, in the disposal of his property, overlooks a particular event, which, had it occurred to him, he would probably have guarded against, the omission will not be supplied by employing or inserting the necessary clause. And though the inference of intention be more or less strong, yet, if not necessary or indubitable, the court will not aid the supposed intention by adding or supplying words.

Estates are contingent which are limited to take effect upon the happening of an uncertain and doubtful event, or where the persons to whom they are limited are not ascertained or yet in being.

The heir at law never takes by the act or intention of the testator. His right is paramount to and independent of the will, and no intention on the part of the testator is necessary to its enjoyment. On the contrary, such right can only be displaced or precluded by direct words or plain intention evincing a desire upon the part of the testator that he shall not take. He needs no argument or construction showing intention in his favor to support his claim. They belong to the party claiming under the will and in opposition to him.

Appeal from Louisville chancery court.

PIRTLE & BALLARD, for appellants, cited 1 Met. 514; 3 Mon. 537; 1 Fearne on Contingent Remainders, 8; 2 Ib. 150,427; 18 B. Mon. 368; Ib. 174; 2 Roper on Legacies, 1463, 1470-2, 1461, note; 2 Vesey, Sr. 74; 19 Vesey, Jr. 653; Ib. 521; 16 Ib. 46; 6 Munford, 114; 2 B. Mon. 462; 6 Ib. 313; 8 Ib. 620; 5 Term Rep. 512; 3 Clark & Finnelly, 689.

G. A. and I. CALDWELL, for appellees, cited 55th vol. Law Library, Crabb on Real Property, top p. 642, side p. 976, sec. 2343; 5 Dana, 442, 444, 295; 23 Pick. 287; 16 B. Mon. 312; 14 Ib. 175, 338, 344.

OPINION

STITES Chief Justice.

This controversy arises under the will of Springer Augustus, and depends upon the construction and effect to be given to the following provisions thereof:

" Item--I give and bequeath unto my beloved wife, Nancy Augustus, the tract of land on which I now reside, with all the improvements of every description, to have and to hold the same during her natural life. I also give and bequeath to my beloved wife my negro man named Humphrey, and a negro woman named Clary, and her increase if she should have any, to have and to hold the aforesaid slaves during her natural life, should she remain a widow. "

" Item--I also give to my beloved wife, during her natural life, my wagon, head-gear, etc.," (naming sundry articles of personal property). " It is my desire that in case my beloved wife shall marry, she is only to hold that part of the tract land and farm which lies eastwardly of the lane and road leading through the plantation. After that event may take place the balance of the devises made to her are not to be affected by the circumstance of her intermarriage."

The testator proceeds to direct a sale of all of his personalty, except that devised to his wife, and provides that, if it be not sufficient to pay his debts, his executors shall sell a negro man named Aaron. But (he adds), if the personal estate be sufficient for the payment of my debts, I then, in that case, devise and bequeath to my beloved wife, during her natural life, the said negro man."

" Item--I give and bequeath the real estate and slaves herein devised to my beloved wife during her natural life, after her death to be equally divided among the lawfully begotten children of my brothers John, David, Jacob and James, or such of them as may be living at the time of her death, or the said slaves and real estate to be sold and the proceeds to be equally divided among the children as aforesaid. "

There is an entire absence of any residuary clause in the will, and also of any language which tends to show that the testator had, by his will, disposed of his entire property, unless that contained in the foregoing items can be so regarded.

The widow married many years since, and is yet alive, but since her marriage has set up no claim to that part of the farm west of the lane mentioned in the will.

Upon her marriage the executors, supposing they had the right under the will, assumed control over the land west of the lane, and have continued to rent it out for the benefit of the children--now living--of the brothers of the testator mentioned in the will.

Two of the brothers and a sister of the testator--claiming title, as his heirs...