Banzhoff v. Smith

• Decision Date: 18 February 1930
• Citation: 26 S.W.2d 1034,233 Ky. 737
• Parties: BANZHOFF et al. v. SMITH et al.
• Court: Kentucky Court of Appeals

26 S.W.2d 1034

233 Ky. 737

BANZHOFF et al. v. SMITH et al.

Court of Appeals of Kentucky

February 18, 1930

Rehearing Denied May 13, 1930.

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Suit by George K. Banzhoff and another against G. Sweetman Smith and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

W Pratt Dale, of Louisville, for appellants.

J. H Gold, of Louisville, for appellees.

STANLEY C.

The will of the late Frances O. Ziegler is as follows:

"I Frances O. Ziegler, being in good health and of sound mind, do this 22nd day of November, 1914, make this my only will and testament. After all my just and lawful debts are paid, I bequeath my real estate to my father to be kept intact and he to draw $5.00 a week the rest of his natural life. After his death, to be divided equally among my two children, Esttella Zeigler and George Banzhoff. After their death to go to their heirs. All other money and collateral to be divided among my two children, Esttella Zeigler and George Banzhoff, share and share alike. I do hereby name George Oppenheimer Executor of my will, without bond.

Frances O. Zeigler."

Testatrix's father is dead. Her two children mentioned in the will, who are the appellants, contracted with the appellee G. Sweetman Smith to sell and convey to him a certain parcel of land devised to them by the will, and tendered him a deed which was not accepted on the ground that appellants were without power to convey a fee-simple title. This suit was brought for specific performance. The chancellor interpreted the will as giving to appellants only a life estate in their father's real property, and, from the judgment so construing the will and declining to require specific performance by Smith, this appeal is prosecuted.

It is argued in behalf of appellants that the word "heirs" is to be construed as embracing the whole line of succession; that the context of this will clearly indicates that such was the intent of the testatrix, and that they were accordingly vested with fee-simple title. Reliance is principally had on Meisberg v. Bryant, 184 Ky. 600, 212 S.W. 600, in which are given instances in which the word should be construed as one of limitation and others in which it is to be considered as a word of purchase; the claim being that this devise falls in the former class. There are many other cases of like effect where application of these rules of construction was made and the subject considered more or less at length. See especially Naville v. American Machine Company, 145 Ky. 344, 140 S.W. 559, 37 L. R. A. (N. S.) 153; Hayes v. Hayes, 154 Ky. 729, 159 S.W. 544; Bentley v. Consolidation Coal Company, 209 Ky. 63, 272 S.W. 48; and Azarch v. Smith, 222 Ky. 566, 1 S.W.2d 968.

The phrase "at his death" is usually preceded by such expressions as "during his natural life," or other terms clearly indicating a life estate (Trustees Presbyterian Church v. Mize, 181 Ky. 567, 205 S.W. 674 2 A. L. R. 1237; Harrington v. Layton, 200 Ky. 630, 255 S.W. 271; Combs v. Fields, 211 Ky. 842, 278 S. W. 137), and the ambiguity was usually in the use of the words "heirs" or "children." Where there was manifestly only a life estate, the two words have been consistently construed as synonymous and deemed words of purchase. (See the several cases herein cited.) It is a question here whether a life estate was intended. As is said in Page on Wills,§ 976: "No set rule can be laid down for determining whether testator's intention in making a devise over after the death of the devisee to whom an estate in fee has already been given is to restrict the interest of the first taker to a life estate or to create a fee which lacks certain necessary incidents. This...