Barnes v. Johns

• Decision Date: 07 November 1935
• Citation: 261 Ky. 181,87 S.W.2d 387
• Parties: BARNES et al. v. JOHNS et al.
• Court: Kentucky Court of Appeals

87 S.W.2d 387

261 Ky. 181

BARNES et al. v. JOHNS et al.

Court of Appeals of Kentucky

November 7, 1935

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

Proceeding between Lee M. Barnes, individually and as executor of the will of Mary Carrie Barnes, and others, and Lillie Johns and others. From an adverse judgment, Lee M. Barnes and others appeal.

Affirmed.

B. A Guthrie and Roy Frankenberger, both of Louisville, for appellants.

Garnett & Van Winkle, of Louisville, for appellees Lillie Johns Laura Francke, and Florence Cochran.

T. M Galphin, Jr., of Louisville, for appellees Ethel Moore and Lorraine Hillerich.

RICHARDSON Justice.

John F. Hillerich, the father of six daughters, a resident of Jefferson county, Ky. died testate in 1902. "Of these six daughters, one, May Hillerich, died without issue before the death of John F. Hillerich. No children were born to two of these daughters, Mary Carrie Barnes and Florence Cochran, but children were born to Lillie Johns, Lida Scholl and Laura Francke. Two sons, John A. Hillerich and Fred Hillerich were also born to John F. Hillerich. One of these, John A. Hillerich is a defendant in this action. Fred Hillerich died in 1902, leaving surviving him, Arthur Hillerich and Ethel Moore, and these the only children of Fred Hillerich survived John F. Hillerich. Since the filing of this action, Arthur Hillerich died, leaving as sole devisee under his will, his wife, Lorraine Hillerich."

Hillerich's will was duly probated and the nominated executor, William Furlong, qualified as executor of it.

The first three clauses directed the payment of his debts, small bequests to servants, and payment of the statutory allowance to the widow. The other clauses of the will read:

"Fourth: To my grandchildren, Arthur, Hillerich and Ethel Hillerich, children of my deceased son, Fred Hillerich, I will and bequeath the sum of One Thousand ($1,000.00) Dollars in cash to each of them.

"Fifth: To my son, John A. Hillerich, I will and bequeath the sum of One Hundred ($100.00) Dollars in cash. He has been associated with me in business for a long number of years, and has had the benefit of my trade and experience and is well fixed and able to care for himself and his family.

"Sixth: All the rest and residue of my estate of whatever kind and description and wherever situated, real, personal and mixed, I will, devise and bequeath to my five children, viz: Lillie Johns, Carrie Barnes, Laura Francke, Lyda Scholl and Florence Cochran, each of them to receive a one-fifth interest in such residue and of the share going to each of them one-half thereof shall belong to them absolutely and the remaining half of each share shall belong to them for and during their natural life with remainder to their children. The share of my estate going to each of my daughters under this clause of my will shall be their separate estate and free from the control of marital rights of their present husbands, or any husband either of them may have."

While other issues were made in the pleadings, the determinate one now presented is, the construction of the testator's will as it concerns Lee M. Barnes.

Lee M. Barnes, individually and as executor of her will, contends that Mary Carrie Barnes, his wife, under the will of John F. Hillerich, was devised an absolute fee in one-half of the property devised to her and a defeasible fee in the other one-half which ripened into an absolute fee in her, upon her death.

Lillie Johns, Laura Francke, Florence Cochran, Arthur Hillerich, Ethel Moore, John A. Hillerich, and Lyda Scholl insist that one-half of the property was devised to her in fee and the other half for life only, and, because she died without issue, the one-half devised to her for life is, in law, undevised property of the testator, and in the circumstances became vested in them as his heirs at law upon the death of Mrs. Barnes.

The trial court decreed that of the residue of the estate devised to Mrs. Barnes one-half of it vested in fee in her and the other half for her life and then to her children, and that, since she died without issue, the one-half so devised to her for life reverted to the estate of John F. Hillerich and passed under the law of descent and distribution.

It is argued by Lee M. Barnes that the trial court reached his conclusion by considering only clause 6 of the will, when it in its entirety establishes the intention of the testator to devise to his daughters, including Mrs. Barnes, "a one-fifth absolute interest in his estate, subject to the rights of their children, if any there were, and that therefore, Mary Carrie Barnes was entitled to the one-fifth interest that she received from her father's estate and had a perfect right to pass it by will to Lee M Barnes." He insists that, if "the Sixth Clause of the will of John F. Hillerich does not vest Mary Carrie Barnes with a defeasible fee in the estate, the residue will certainly pass under the residuary clause of the will rather than descend by the law of descent and distribution under the will of John F. Hillerich." To substantiate his construction of the will, he presents the testimony of Mrs. Francke, disclosing her interpretation of it. The rule is that extrinsic evidence is admissible to explain a latent...