Clay v. Clay

• Decision Date: 27 February 1865
• Citation: 63 Ky. 295
• Parties: Clay, & c., v. Clay.
• Court: Kentucky Court of Appeals

63 Ky. 295

Clay, & c., v. Clay.

Court of Appeals of Kentucky.

February 27, 1865

1. Henry Clay, by his will, after bequeathing to his tow sons Thos. H. and James B., a fund, provides, that " it is my will and intention that the said fund, in equal portions shall finally pass to such persons as each of my said sons as to his part, shall finally direct, by his last will and testament, and, in default of such will, to their respective heirs, according to the Kentucky Statute of distributions." Held --That James B. having died without will, his widow was entitled to one-third of the fund as distributee.

2. The term " heirs" in a will should be interpreted according to the subject-matter when there is no other clue to its interpretation. If the subject be realty, the term should be understood in its technical import; and if the subject be personalty, the same term should be held as importing " distributee," or " successor." (4 Kent. p. 536; 2 Williams on Exrs., p 727.)

APPEAL FROM FAYETTE CIRCUIT COURT.

M. C. JOHNSON for appellants.

HUNT & BECK, for appellee, cited 2 Williams on Ex., 727; 4 Kent, 536.

OPINION

ROBERTSON JUDGE.

The only question for our consideration is, whether, as adjudged by the circuit court, the surviving widow of James B. Clay, who died intestate, is entitled to a distributive portion of a fund bequeathed by the will of his deceased father, Henry Clay, of Ashland, in the following words--succeeding a bequest of a residual portion of personalty to each of his two sons, Thomas H. and James B. Clay--" It is my will and intention that the said fund, in equal proportions, shall finally pass to such persons as each of my said sons, as to his part, shall finally direct, by his last will and testament, and, in default of such will, to their respective heirs, according to the Kentucky statute of distributions."

At the date of the publication of H. Clay's will, the statutes of descent and distributions were separate and distinct enactments. And he must be presumed to have known the essential difference between the descent of real estate, according to the statute of descents, and the distribution of personal estate, according to the statute of distribution.

The term " heirs," in a will, should be interpreted according to the subject-matter, when there is no other clue to its interpretation. If the subject be realty, the term should be understood in its technical import; and...