Collis v. Citizens Fidelity Bank & Trust Co.

• Decision Date: 10 November 1950
• Citation: 314 Ky. 15
• Court: United States State Supreme Court — District of Kentucky
• Parties: Collis v. Citizens Fidelity Bank & Trust Co.

314 Ky. 15

Collis v. Citizens Fidelity Bank & Trust Co.

Court of Appeals of Kentucky.

November 10, 1950.

Declaratory judgment action by Harriet Cox Collis against the Citizens Fidelity Bank & Trust Company to determine what estate plaintiff took under the will in certain trust property. The Chancery Branch, Second Division for Jefferson County, W. Scott Miller, J., adjudged that the plaintiff took a life estate in the property with the remainder in her three children and the plaintiff appealed. The Court of Appeals, Sims, C.J., held that the construction of the will by the chancellor was correct.

Judgment affirmed.

1. Wills. — Under will bequeathing the net income of testamentary trust to children of daughter "and such of their descendants per stirpes as might be born within her lifetime" etc. the quoted phrase was limited to stirpes and to those children born during the lifetime of the daughter so that the words were words of purchase and not words of limitation and there was no estate tail in the will which by statute was converted into a fee simple in the daughter. KRS 381.070 2. Wills. — To create an estate tail, words of limitation must be general and not restricted.

3. Wills. — The word "descendants" means the issue of a deceased person.

4. Wills. — Intention of testator is controlling in construction of will.

5. Wills. — Where land is devised to a parent and his or her children nothing to contrary appearing in the will, a parent takes a life estate with remainder vesting in the children.

6. Wills. — Presumption obtains that every word is intended by testator to have some meaning and no word or clause in a will is to be rejected if a reasonable effect can be given it especially where a will has been prepared by a skilled draftsman.

7. Wills. — Under terms of will bequeathing net income of testamentary trust to children of the daughter of testator should she have any and such of their descendants per stirpes as might be born within her lifetime, etc. daughter took a life estate with the remainder to her three daughters in fee.

Squire R. Ogden, Charles A. Robertson, and Ogden, Galphin & Abell for appellant.

James W. Stites, and Doolan, Helm, Stites & Wood, for appellee.

Before W. Scott Miller, Judge.

CHIEF JUSTICE SIMS.

Affirming.

This declaratory action was instituted by Harriet Collis against the Citizens Fidelity Bank and Trust Company, trustee under the will of her grandfather, George Gaulbert, to determine what estate she took under the will in certain trust property. The chancellor adjudged Mrs. Collis took a life estate in the property with remainder in her three children, and she appeals.

Hon. W. Scott Miller, Judge of the Chancery Branch, Second Division of the Jefferson Circuit Court rendered a clear and logical opinion which we now adopt. However, Judge Miller copied the entire will in his opinion and as we think the estate Mrs. Collis takes is determined by the construction of one paragraph from Item 8 of the will, it will be the only part of the will incorporated in this opinion. With this slight change Judge Miller's opinion reads:

"This action involves the interpretation of the will of George Gaulbert who died in 1908. His widow also died a number of years ago.

"Mr. and Mrs. Gaulbert had one child, Carrie Gaulbert who married Attilla Cox in 1898 and who died Feb. 22, 1949.

"Mr. and Mrs. Cox had one child, the plaintiff, Harriet Cox, who was born before the death of Mr. Gaulbert and who married John V. Collis. Mr. and Mrs. Collis have three children all of whom were born during the lifetime of Mrs. Cox.

"The will of Mr. Gaulbert was written for him in 1896 by Temple Bodley, a competent member of the Bar. At the time the will was written Mrs. Cox had not yet married and Mrs. Collis had not been born. However, at the time of Mr. Gaulbert's death in 1908, Mrs. Cox had been married some ten years and Mrs. Collis was seven years old."

The applicable part of Item 8 of Mr. Gaulbert's will reads: "Said net income shall be paid monthly to the child or children of my said daughter should she have any (and such of their descendants per stirpes as may be born within her lifetime) until the youngest of such children becomes twenty-one years of age and then the principal of such half of said trust estate (subject to said prior charges) shall vest in such children and their said descendants in fee per stirpes. During default of such issue of my said daughter said income shall be paid monthly to my wife for life and at her death the principal of said one half of said trust estate shall pass in fee to my brother, sisters, nephews and nieces, the descendants of any of them who may be then dead to take their share or shares per stirpes.

"Harriet Cox Collis, being now over twenty-one years of age, the estate is to `vest' in `the child' of Mrs. Cox `and such of (her) descendants per stirpes as may be born within her (Mrs. Cox's) lifetime.'

"Does this mean: 1. That Harriet Cox Collis takes the fee, or 2. That Harriet takes a life estate with remainder to her descendants born during the lifetime of Mrs. Cox, per stirpes, or 3. That Harriet and such of her descendants as were born during the lifetime of Mrs. Cox take as a class?

"It is argued that Harriet Collis takes the fee on either one of two theories: (1) The bequest to the child of Mrs. Cox and her descendants, born during Mrs. Cox's lifetime, creates an estate tail in Harriet which is by statute (KRS 381.070) converted into a fee simple. (2) Based on the English case of Dick v. Lacy, 8 Beavan 214, it is contended that the bequest to the descendants per stirpes requires that Harriet take the fee by way of `substitution' for her descendants, as the head of a stirpes.

"It is obvious that the words `and such of their descendants per stirpes as may be born within her lifetime' are limited (1) to stirpes and (2) to those born during Mrs. Cox's lifetime. It therefore follows that they are words of purchase and not words of limitation.

"In order to create an estate tail, the words of limitation must be general and not restricted. Simpson v. Adams, 127 Ky. 790, 795, 796, 106 S.W. 819, 32 Ky. Law Rep. 617.

"It follows that there can be no estate tail in this will. Carr v. Estill, 55 Ky. (309, 16 B.Mon.) 309.

"In the case of Dick v. Lacy, 8 Beavan 214, decided in 1845, the devise was to `the daughters of Captain Boyce, and their descendants per stirpes, to hold to them, their heirs and assigns forever.'

"The Master of the Rolls held that the use of the words `their descendants per stirpes' (a) excluded the idea of an estate tail and (b) likewise excluded the children of a living parent from taking any interest under the will. The parents took the fee as head of the `stirpes' by way of `substitution' for their descendants.

"One difficulty with the application of this rule to the instant situation is that it cannot be said here that Harriet Collis is the head of a stirpes for the only ones of her descendants named are the descendants born during the lifetime of Mrs. Cox. In other words, for her to take by way of substitution might include descendants born after the lifetime of Mrs. Cox which is plainly contrary to the intention expressed in the will.

"A second and conclusive answer to this claim is that, in the interpretation of wills, the Court of Appeals has expressly and specifically refused to follow the English cases. In Carr v. Estill, 55 Ky. [16 B.Mon.] 309, a devise was `to Mary Baker Didlake and her children'. The opinion points out that under the English rule this devise would create an estate tail. In England such a devise would effectuate the intention of the testator because the children would share...