Carr & Wife v. Estill

• Decision Date: 15 October 1855
• Citation: 55 Ky. 309
• Parties: Carr and Wife <I>vs.</I> Estill.
• Court: Kentucky Court of Appeals

Page 309

55 Ky. 309

Carr and Wife vs. Estill.

Court of Appeals of Kentucky.

October 15, 1855.

APPEAL FROM FAYETTE CIRCUIT.

Robinson & Johnson and C. D. Carr for appellants —

COPYRIGHT MATERIAL OMITTED

No brief for appellee on file.

Judge CRENSHAW delivered the opinion of the Court.

Clifton R. Ferguson, on the 28th day of September, 1847, made a will by which he devised "to Mary Baker Didlake and her children," a tract of land in the county of Fayette. At the time of this devise, the devisee was unmarried, and without children. She has since married and has one child, and her husband, Carr, having sold the land to Estill, and his wife being willing to unite with him in conveying the land, the question is presented whether Carr and wife can convey an absolute fee simple estate in the land to the purchaser.

It is stated in Powell on Devises, 494, as a rule of construction in England that where lands are devised to a person and his children, and he has no children at the time of the devise, the parent takes an estate tail. By our law an estate tail is converted into a fee simple; so that this rule of construction would give to Mary Baker Didlake an absolute fee in the land, and any children which she might thereafter have would be cut off, and could take no interest under the devise. This English rule of construction was adopted in order to effectuate the intention of the testator. For, as it is said, "the intent is manifest and certain that the children should take, and as immediate devisees they cannot take, because they are not in rerum natura and by way of remainder they cannot take, for that was not his intent, for the gift is immediate, and therefore such words shall be taken as words of limitation." Now, although, the words abstractly and literally import an immediate gift, not only to the devisee in esse but to his or her children also; yet if there be no children at the time, does it necessarily follow, as seems to have been supposed, that it was not the testators intent that the children should take by way of remainder? We think not. But whatever may have been the legitimacy of such a conclusion in England, where in general more precision and particularity were observed in the creation of remainders than in this country, we are of opinion, that with us it does not necessarily follow, that because the words literally and abstractly import an immediate gift, it was not the intention of the testator to give a remainder interest to the children. In general, the word "children" is a word of purchase and not of...