Bush's Executor v. Mackoy

• Decision Date: 09 March 1937
• Citation: 267 Ky. 614
• Parties: Bush's Executor v. Mackoy et al.
• Court: United States State Supreme Court — District of Kentucky

267 Ky. 614

Bush's Executor v. Mackoy et al.

Court of Appeals of Kentucky.

Decided March 9, 1937.

1. Wills. — In fulfilling duty to carry out testator's intention in construing a will, court will be guided by meaning of what testator actually said rather than by what he intended to say.

2. Wills. — Where there is ambiguity in a will, court will consider surrounding circumstances at time of execution of will, amount of testator's estate, apparent motive which actuated him, and other facts, but not so as to import into the will any intention not expressed therein.

3. Wills. — Where description of property devised in a will is ambiguous, inaccurate, or indefinite, parol evidence may be received to identify it.

4. Wills. — Where elderly woman devised "my lot on 15 street," "if not sold at my death," for benefit of charity to be selected by trustee, and the will made substantial specific money bequests, but testatrix owned two lots near 15th street, one her home and the other vacant, and none on 15th street, devise held to refer to the vacant lot, as against contention that description was void for indefiniteness, since presumably testatrix intended that more valuable lot should be used to pay specific bequests, and did not contemplate sale of her home lot before her death.

5. Wills. — In construing will, where testator's intention is in doubt, court may have recourse to presumption of what his intention probably would have been under the circumstances.

6. Charities. — Under statute of charitable trusts, where purpose of the charity is made reasonably certain by instrument creating it beneficiaries may be designated as a class only, leaving particular

beneficiaries within the class to be determined by the trustee or by the court (Ky. Stats., sec. 317).

7. Charities. — Where testator designates neither class nor object of charitable bequest, and leaves choice to the trustee, the bequest fails under statute, as an attempt to delegate testator's authority to make the will (Ky. Stats., sec. 317).

8. Charities. — Part of bequest for charitable purposes providing that trustee might distribute funds "as he thinks best wherever he thinks needed" held void for uncertainty, under statute (Ky. Stats., sec. 317).

9. Charities. — Charitable bequest will be upheld if bounty can be applied to any single object within a specified class of beneficiaries, or if it can be upheld without violating any rule of law, principle of justice, or public policy (Ky. Stats., sec. 317).

10. Charities. — Direction in will that property be sold by trustee "and given to the needy widows home, childrens home or distributed as he thinks best wherever he thinks needed" held valid under statute as respects bequest to "the needy widows home, or childrens home," as against contention that it was too uncertain, since courts favor validity of charitable bequests in cases of doubt (Ky. Stats., sec. 317).

Appeal from Boyd Circuit Court.

THOS. D. TINSLEY and W.H. DYSARD for appellant.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Reversing.

Mrs. Jennie Moran Bush, deceased, disposed of her household furniture and made a number of bequests of money, amounting to over $16,000. She owned two parcels of real estate in Ashland. One of them was her home, situated on Carter avenue between 15th and 16th streets, worth from $15,000 to $20,000. The other is an unimproved lot on Central avenue, between 14th and 15th streets, worth $1,500 to $2,000. By a holographic codicil testatrix provided:

"If not sold at my death, I give to H.R. Dysard, my lot on 15 street to be sold by him and given to the needy widows home, childrens home or distributed as he thinks best wherever he thinks needed."

Judge Dysard was named as executor. He brought this suit for a construction of the will and settlement of the estate. The heirs are numerous, but not closely related, and many have been proceeded against as unknown heirs of relatives known to have died. The chancellor held the foregoing bequest invalid because the testatrix owned no lot on 15th street and the bequest was not enforceable under the terms of section 317 of the Statutes, which provide that a charitable gift and trust is valid if it "shall point out, with reasonable certainty, the purposes of the charity and the beneficiaries thereof."

It is the duty of the courts to carry out as best they can the intention of a testator. In endeavoring to ascertain that intention, the real question is, What is meant by what the testator said? rather than what he intended to say. Wickersham v. Wickersham, 174 Ky. 604, 192 S.W. 688; Shields v. Shields, 185 Ky. 249, 214 S.W. 907; McBride v. McBride, 262 Ky. 452, 90 S.W. (2d) 736. In order more intelligently to get at that meaning and give it effect, where there is ambiguity, the court will consider the conditions which surrounded the testator at the time he executed the will, the amount of his estate, the apparent motives which actuated him in thus expressing himself, and other facts tending to throw light on the language used. Watkins v. Bennett, 170 Ky. 464, 186 S.W. 182; Prather v. Watson's Ex'r, 187 Ky. 709, 220 S.W. 532; Corn v. Roach, 225 Ky. 725, 9 S.W. (2d) 1074; Blessing v. Johnston, 249 Ky. 777, 61 S.W. (2d) 635; Tucker v. Tucker, 259 Ky. 361, 82 S.W. (2d) 458. But such conditions cannot import into the will any intention not expressed therein. Calloway v. Calloway, 171 Ky. 366, 188 S.W. 410, L.R.A. 1917A, 1210. In this connection, where the description of property devised is ambiguous, inaccurate, or indefinite, parol evidence may be received to identify it. Tarr v. Tarr's Ex'r, 259 Ky. 638, 82 S.W. (2d) 810.

The testatrix owned only two parcels of real estate, her household furnishings, an automobile, and some money in the bank. Although the description of the property devised is "my lot on 15 street," she owned no property abutting on that street. But she owned an improved lot on an intersecting street near 15th and a vacant lot on another intersecting street also near 15th street. The value of the first was approximately equivalent to the aggregate of her specific monetary bequests. The proceeds of the second were not needed for that purpose. We think it would not be reasonable to say that she intended the proceeds of the improved property of greater value to be used for the bequest to charity, while that which would yield only 10 per cent. of the specific bequests of money was intended to be used in satisfaction of them. Moreover, the term "my lot" is more consonant with the vacant lot than the one improved by a valuable residence. The reference to the possibility of the lot being sold before testatrix' death is worthy of consideration, for an elderly woman usually expects to keep her home rather than to sell it and retain an unimproved city lot. Sometimes recourse may be had to presumptions where the mind is in doubt as to the intention. Ireland v. Cooper, 211 Ky. 323, ...