Burnam v. Suttle

• Decision Date: 21 May 1912
• Parties: BURNAM et al. v. SUTTLE.
• Court: Kentucky Court of Appeals

147 S.W. 3

148 Ky. 495

BURNAM et al. v. SUTTLE.

Court of Appeals of Kentucky.

May 21, 1912

Appeal from Circuit Court, Warren County.

Suit between Anita Burnam and others and Mary B. Suttle. From a judgment in favor of the last named, the former appeal. Affirmed.

G Duncan Milliken, of Bowling Green, for appellants.

Sims &amp Rodes and Grider & Harlin, all of Bowling Green, for appellee.

CARROLL J.

In his will, which was probated in 1852, Bennett Burnam in the first clause gave to his daughter, Lee Ann Smith, the widow of Calvin Smith, certain real estate and his household and kitchen furniture. In the second clause he directed that there be placed in trust for the use of his daughter, Lee Ann Smith, during her life, all of his money, notes, bonds, and choses in action, and provided that: "After the death of said Lee Ann, I will and direct that the whole of said trust funds in the hands of the trustee be paid over to the children then living of my said daughter, and if any of her children be dead leaving children at the time of her death the said last named children are to receive the share or portion which their parent if living would have received; if any of my legatees be infants, the money which shall be due to them under this will shall be paid to their guardian for them. ***" In the third clause he gave to his niece Nancy Smith $1,000, but provided that if she should die before she became 21 years of age, and without issue, it should be divided between his brothers and sisters. The fourth clause reads: "I will and devise to Mary B Smith, daughter of Calvin and Lee Ann Smith, my lot and house lying next to Dr. Briggs' shop, it is usually called the blacksmith shop lot. I also give and devise to Mary B. Suttle my lot of ground on Green street between A. W. Graham and R. W. Ragland's lots, both of said devised lots are in the town of Bowling Green." In a codicil he directed that: "In case of the death of all the children of my daughter Lee Ann Smith, without issue, then my will is that the whole estate before set forth as bequeathed to them in any event shall revert and descend to my legal representatives as though no will had been made, that is, to my brothers and sisters and their legal representatives."

Lee Ann Smith died, leaving surviving her two children, the appellee Mary B. Suttle, or Mary B. Smith, as she is called in the will, and a son Calvin Smith who died many years ago unmarried.

This suit involves the construction of the will of Bennett Burnam, and arises out of the fact that the heirs and legal representatives of the testator claim that, in the event of the death of Mary B. Smith, who is now an old lady and childless, the estate devised to her in the fourth clause of the will reverts to them; while it is her contention that under the will she took a fee-simple title in the property described in the fourth clause of the will. The lower court ruled that Mary B. Smith, now Suttle, took the fee in this property, and from this judgment the heirs of the testator prosecute this appeal.

In the first clause of his will the testator gave certain property absolutely to his daughter, Lee Ann Smith. In the second clause he gave her certain property for life, with remainder to her children. In the third clause he gave to his niece Nancy Smith $1,000, with a direction that in the event of her death before she became 21 years of age, or without issue, it be paid to his brothers and sisters. And in the fourth clause he gave absolutely to Mary B. Smith the property therein mentioned. It will be noticed that the testator gave to his daughter, Lee Ann, absolutely the property mentioned in the first clause, and to his...