Boggs v. Baxter
| Decision Date | 23 October 1953 |
| Citation | 261 S.W.2d 684 |
| Parties | BOGGS v. BAXTER. |
| Court | United States State Supreme Court — District of Kentucky |
John S. Deering, Nicholasville, for appellant.
D. L. Pendleton, Winchester, for appellee.
This suit for a declaration of rights seeks a judicial interpretation of the will of J. J. Baxter, appellee's deceased father. The facts out of which this litigation grew are that on May 20, 1953, appellee, W. J. Baxter and his wife, Eva, entered into a written contract with appellant, O. T. Boggs, whereby the former agreed for a fixed price to convey certain land in Jessamine County to the latter in fee simple. Thereafter, when Baxter tendered a general warranty deed to Boggs, he declined to accept it and refused to pay the purchase price, insisting that Baxter does not have and cannot convey a marketable title to the tract because the land involved was not devised to him in fee by his father's holographic will, which reads thus:
'Nicholasville, Ky., February 17th, 1922
'Last and only Will of mine.
'I hereby bequeath to my wife, Verina Baxter all of my real and personal property after my death as long as she remains my widow and then it goes to my son W. J. Baxter and his children but if he gets disable to make his living him and his mother is to receive one half of the proceed.
'Given under my hand this the 17th February, 1922.
'J. J. Baxter'
It is stipulated that the testator died in 1922, leaving no brother, sister, father, mother, or grandparent surviving him; that Verina Baxter, his widow, died in 1945 without having remarried; that W. J. Baxter is the only child of J. J. Baxter and Verina Baxter; and that W. J. Baxter is married but has no children.
The only controversy between the parties herein centers around the construction of the words, 'and his children,' appearing in the will after the name, W. J. Baxter. Boggs insists that the phrase, 'and his children,' must be construed as words of purchase and, if this be true, Baxter has only a life estate in the land which he seeks to convey. Baxter, on the other hand, argues that the words in question, when read in conjunction with the entire will, are words of limitation, with the result that he must be deemed absolute owner of the tract.
The Chancellor, the Honorable Chester D. Adams, upon entering a learned and exhaustive opinion upholding Baxter's contention, overruled a demurrer to the petition and ordered that Boggs accept the deed to the property and pay the purchase price. This appeal is from the judgment manifesting this ruling.
At the outset, certain established rules governing the construction of wills should be stated. First, all doubts should be resolved in favor of the early vesting of a fee as to any real estate devised. Clay v. Security Trust Co., Ky., 252 S.W.2d 906. Second, if the language of a will is doubtful and admits of two constructions, the one conveying an absolute fee, the other a life estate, the court will construe the language as conveying an absolute fee. Edwards v....
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Lee v. Tipton
...prevail. Scheinman v. Marx, 437 S.W.2d 504 (Ky. 1969); Lincoln Bank & Trust Co. v. Bailey, 351 S.W.2d 163 (Ky. 1961); Boggs v. Baxter, 261 S.W.2d 684 (Ky. 1953). And, Kentucky Revised Statutes (KRS) 381.060(1) mandates the court to adopt an interpretation favoring conveyance of a fee simple......
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Graham v. Jones
...vesting will not be used to overrule the obvious intention of the testator. French v. Peirce, 306 Ky. 450, 208 S.W.2d 327; Boggs v. Baxter, Ky., 261 S.W.2d 684. The trial court concluded that the words 'after the death of my said wife the property will descend * * *' evince the testator's i......
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Smith v. White
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