Bedford v. Bedford's Adm'r

• Decision Date: 19 May 1896
• Citation: 99 Ky. 273,35 S.W. 926
• Parties: BEDFORD et al. v. BEDFORD'S ADM'R.
• Court: Kentucky Court of Appeals

35 S.W. 926

99 Ky. 273

BEDFORD et al. v. BEDFORD'S ADM'R.

Court of Appeals of Kentucky.

May 19, 1896

Appeal from circuit court, Lewis county.

"To be officially reported."

Action brought by Thomas S. Clark, administrator de bonis non with the will annexed of Elizabeth M. Bedford, deceased, against Susan M. Bedford and others. There was judgment for plaintiff, and defendants appeal. Reversed in part and affirmed in part.

Geo. T Halbert, Sam J. Pugh, Wm. Goebel, and W. H. Holt, for appellants.

E. L Worthington and Garrett S. Wall, for appellee.

LANDES J.

Mrs Elizabeth M. Bedford died in Lewis county in the month of February, 1860, leaving a son, Robert Bedford, who was then 32 years old. She made a will a short time before she died, which was duly probated, and which contains the following devises: "(1) I give and bequeath to my son, Robert Bedford, all of my lands in Lewis county, to have and to hold during his natural life. *** If said Robert Bedford should die leaving a child or children of his own body, then those lands are to go to those children and their heirs forever. (2) I give and bequeath to my son, Robert Bedford, all the lands and other property I own in the county of Nicholas, to have and to hold during his natural life. *** (4) In case my son, Robert, dies, leaving children of his own natural body, I give and bequeath all my lands to them and their heirs forever. But if my son dies without a child or children, then I desire that all my lands in Lewis and Nicholas be sold, and the money arising from said sales I give and bequeath to the state of Kentucky, forever, in trust that the said state will forever hold the same for the use and benefit of the children of the state, that the said state will invest said money in some profitable bank stock, and the profits therefrom I desire to be appropriated annually forever towards the education of the children of the state of Kentucky, particularly the poor and most unintelligent. I desire that this money constitute a permanent school fund, and the interest from this fund be appropriated annually towards the education of the children of this state." The testatrix owned, at the time of her death, a tract of 343 acres of land in Lewis county, which she purchased in the year 1836. She owned, or claimed to own, also a tract of 200 acres, and one of 300 acres, both in Nicholas county, and an undivided interest of one-fifth in a tract of about 460 acres, situated in Nicholas and Robertson counties, under the will of her father, George M. Bedinger, deceased, who died domiciled in Nicholas county, and whose will was probated and recorded in that county. The question whether she owned and had the right to dispose of the lands claimed under her father's will must be determined by the meaning of several clauses of his will, which will be referred to. Robert Bedford survived his mother 27 years, and died in 1887, in Mason county, leaving a widow, appellant Susan M. Bedford; having made a will by which he devised to his widow all of his property. He died without ever having had issue. The death of George M. Bedinger occurred in the year 1843. He left a widow, Henrietta, four sons, Henry C., Daniel P., Benjamin F., and Joseph Bedinger, and one daughter, the said Elizabeth M. Bedford. By his will, after making numerous specific devises, including a liberal provision for the comfort of his widow, he left the residue of his property to his said sons and daughter. The body of his will was written in 1838, to which were added two codicils, the first bearing date the 11th day of July, 1842, and the second the 28th day of May, 1843. In the body of his will he devised to his daughter a tract of 200 acres of land, using the following language: "To my daughter, Elizabeth M. Bedford, I give and bequeath two hundred acres of land lying on the east side of the Maysville turnpike road. *** The property bequeathed to my daughter, Elizabeth M. Bedford, to go to her child or children at her death, or, if she and her son, Robert, die without children, the estate to revert to her four brothers now living, their heirs or assigns forever." The residuary clause of his will is as follows: "The residue of my estate of every description, with all reversions, I will and bequeath to my five living children equally, and, should any of them die without issue before they have disposed of their interest in any realty thus devised, their portion to the others living or having issue, their heirs or assigns, forever." In the first codicil of his will he made the following provision: "My further will and desire is that my beloved wife, Henrietta, should have the use and benefit of all my land not specifically willed to my children, and I hereby will and bequeath the same to her during her natural life, in addition to the bequests heretofore devised to her, and at her death my will and desire is that that part given to my wife during her life should be divided into five equal parts, four parts to go to my sons, Henry C., Daniel P., Benjamin F., and Joseph Bedinger, and their heirs forever, and the other fifth bequeath to my daughter, Elizabeth Bedford; and should my children or grandchildren to whom I have willed anything die without issue, that then the property thus willed should revert back to my surviving children and their heirs in equal proportion." Finally, in the second codicil to his will, which was written a short time before he died, he used the following language: "(1) *** Instead of the various devises contained in the preceding will, I will to my wife one equal third part of all my property, both real, personal, and mixed, during her natural life, and after my death my will and desire is that the same be equally divided between my five children now living, to wit, Henry C., Daniel P., Benjamin F., and Joseph Bedinger, and Elizabeth M. Bedford, their heirs and assigns forever. *** (6) It is my will and desire that in case of the death of my daughter, Elizabeth, before her son shall have arrived at the years of maturity, and should her son die without issue, that the property bequeathed shall revert, and be merged in the estate." This suit was brought by Thomas S. Clark, administrator de bonis non with the will annexed of Elizabeth M. Bedford, deceased, to sell said lands, and have the proceeds paid to the state of Kentucky in accordance with the terms of her will. There is no controversy about Mrs. Bedford's ownership, and her right to dispose of the tract of land in Lewis county, which was purchased by her in 1836. But the appellant Susan M. Bedford claims all of the lands mentioned, both in Lewis and Nicholas counties, under the will of her husband, the said Robert Bedford, alleging that the disposition of these lands in the will of his mother, Elizabeth M. Bedford, was so vague, indefinite, and uncertain, especially in regard to the beneficiaries of the trust attempted to be created, as to render it absolutely void. Her contention is that, by virtue of the provisions of the second codicil to the will of George M. Bedford, deceased, Elizabeth M. Bedford having died after her son Robert reached his majority, the title to the lands in Nicholas county devised to her became absolute, and that, being thus seised in fee of all the lands claimed by her, at her death they descended to Robert, and passed to her under his will, the devise to the state of Kentucky in trust being absolutely void, as above stated. On the other hand, it is claimed for the other appellants, the heirs of the four brothers of Mrs. Elizabeth M. Bedford, all of whom are dead, that under the will of George M. Bedinger, deceased, Mrs. Bedford had only a life interest in the Nicholas county lands devised to her, and that, the said Robert Bedford having died without issue, the said lands reverted at his death, and vested in the four sons of the said George M. Bedinger who are named in his will, or their heirs, while the appellee, Garrett S. Wall, who had, prior to the commencement of the action, been appointed by the superintendent of public instruction, in pursuance of the provisions of the General Statutes (section 4397, St. Ky.), agent for the state to collect and take charge of the money, claims that under the will of Elizabeth M. Bedford the state is entitled to receive, as trustee, the proceeds of the sale of all the lands intended to be disposed of by her, on the ground, as alleged, that she owned the same absolutely at the time of her death, and had the right to dispose of them; and that the said Robert Bedford, to whom she devised a life estate in them, died "without a child or children." On the final hearing of the cause the court below, in substance, adjudged that Mrs. Bedford owned all of the lands above mentioned in fee simple, and that they passed under and in pursuance of her last will, except the 200-acre tract in Nicholas county, in which it was adjudged she had only a life estate, and which, therefore, did not pass under her will. The court accordingly adjudged that the 200-acre tract belonged, in proper proportions, to the heirs of the four brothers of Mrs. Bedford. Joseph Bedinger, one of the four brothers, being a defendant, but having died after the judgment was rendered, his heirs were, by proper proceedings, made parties to the appeal in this court. And the judgment which we have recited is before us for review.

Although proper exceptions were taken in behalf of the state, or its agent, with regard to so much of the said judgment as established the claim of Joseph Bedinger and others to the 200-acre tract of land, the state, or its agent, is no longer concerned in that question as the case now stands, because no appeal was prayed or is now prosecuted from the judgment, in behalf of the agent of the state. But the...