Cummings v. Nunn

• Decision Date: 12 May 1942
• Citation: 290 Ky. 609
• Parties: Cummings v. Nunn.
• Court: United States State Supreme Court — District of Kentucky

290 Ky. 609

Cummings v. Nunn.

Court of Appeals of Kentucky.

May 12, 1942.

1. Wills. — Whether estate devised by will to first taker is a fee or life estate must be determined from consideration of whole will.

2. Wills. — Testator's intention must be gathered, if possible, from language of will, and technical rules of construction will not be resorted to, unless such language is ambiguous.

3. Wills. — Where terms of will are obscure and ambiguous, court may invoke aid of extrinsic evidence, tending to show motives which can be reasonably assigned to have actuated testator, his purpose in making will, relations between him and devisees, and nature and amount of property embraced in will or owned by testator, to clarify ambiguity.

4. Wills. — In ascertaining intent with which testator employed amgiguous language of will, extrinsic evidence, enabling court to

read such language in light of circumstances under which it was written and put itself in testator's place for purpose of determining objects of his bounty or intended manner of disposition of his estate, should be considered.

5. Wills. — All circumstances existing when testator wrote will, including condition, nature and extent of his property, his relations to his family and beneficiaries named in will, and motives which may reasonably be supposed to have influenced him in disposing of his property, should be considered in ascertaining meaning of ambiguous language in will and testator's intent.

6. Wills. — The cardinal rule for construction of will is to ascertain and effectuate testator's intention, as gathered from words of will itself, but where will was unskillfully written by testator himself, such fact must be considered in judicial interpretation of his pervading intent.

7. Wills. — Each will depends for its construction on its own language and circumstances surrounding testator, so far as they shed light on language used.

8. Vendor and Purchaser; Wills. — A holographic will, devising all of testator's real estate to his two youngest sons "and at their death to their legal heirs," held to give such sons "vested fee" in testator's land, not merely "life estate," in view of contextual provisions of will and stipulated facts respecting testator's situation, circumstances and motives at time of writing will, so that such sons' deeds conveying lots, into which they subdivided such land, passed good "fee-simple title" thereto, and one purchasing some of lots from one of such grantees conveyed "vested title" thereto by his tendered deed thereof to his vendee and was entitled to specific performance of such vendee's contract to purchase them (Ky. Stats., sec. 2342).

Appeal from Clinton Circuit Court.

J.A. Flowers for appellant.

J.G. Smith for appellee.

Before J.S. Sandusky, Judge.

OPINION OF THE COURT BY CHIEF JUSTICE PERRY.

Affirming.

This case involves the construction of the holographic will of F.M. Ballenger, which is as follows:

"Knowing that life is uncertain and that death is sure and while my mind is clear and alright I will make my last will and testament.

"1st: I want all my just debts and funeral expenses paid in full and as soon as possible.

"2nd: I will to my two youngest sons, Robert Morrow and James B. Ballenger, all my real estate and at their death to their legal heirs.

"3rd: I have given to James B. Ballenger a horse, cow, saddle and lots of other things and it's my will that my son Robert Morrow Ballenger be made equal with James B. Ballenger out of my personal property and then the remainder thereof be divided equally between the two.

"4th: I hereby designate my two sons, Robert Morrow and James B. Ballenger, executors of my will and ask that they wind up my affairs without giving any bond.

"5th: I have two daughters, Maggie and Eunice Bertram, and I think they are two of the greatest women on earth, but each has a noble husband who will care for them.

"6th: I will that my two youngest sons, Robert Morrow and James B. Ballenger, pay to my oldest son, John William Ballenger, $50.00 each and that they are given twelve months to pay these sums if they desire it.

"7th: I have a note of my oldest son, John William Ballenger, for the sum of $40.00 given a few years ago that I will to him and do not want it collected.

"8th: Should my son, John William Ballenger, sue or try to sue in order to break my will, then I will that the amounts set aside for him be not paid and the note be collected."

When the testator wrote and made this will in February, 1917, his family consisted of two married daughters and three sons, each of whom was specifically named and referred to in his will.

Testator died in 1920, when his will was probated in the Clinton county court and letters thereupon issued to his two youngest sons, Robert Morrow and James B. Ballenger, nominated as his executors, without bond, to wind up his affairs.

Following this, in 1923, Robert Morrow and James B. Ballenger, claiming to be the fee-simple owners of testator's real estate under clause 2 of his will, proceeded to subdivide the land so willed them, which consisted of a farm of some 70 acres lying adjacent to and partly within the town of Albany, Clinton county, Ky., into some 189 lots, which they sold at public auction to the highest bidders therefor, to whom they conveyed the lots, so purchased, by deeds containing covenants of general warranty of title.

Further it appears that in 1937 the appellee, W.H. Nunn, bought from one J.C. Smith, a grantee of the devisees, Robert Morrow and James B. Ballenger, the 27 lots here involved (a portion of the land devised them by their father).

Thereafter, in October, 1940, the appellee, W.H. Nunn, plaintiff below, claiming under such chain of title to be the fee-simple owner of these lots, entered into a written contract with the appellant and defendant below, Odell Cummings, by which he agreed to sell and convey him, by a good and sufficient deed, with covenant of general warranty, title to these 27 lots acquired from J.C. Smith for a consideration of $600.

On November 15 following, appellee tendered appellant a deed executed by himself and wife, purporting to convey him the lots with covenant of general warranty, in accordance with the terms of their contract.

Appellant refused to accept the deed tendered him on the grounds that Nunn could not and did not thereby convey him a good title to the lots.

Following the refusal of appellant to accept the tendered deed, appellee brought this action in equity in the Clinton circuit court, seeking to compel appellant to specifically perform the contract entered into between them.

The parties having by appropriate pleadings joined issue upon the question of the alleged ability of appellee to convey a fee-simple title to the lots here involved, or that of whether appellant would have been vested with a fee-simple title thereto had he accepted the tendered deed, they further filed an agreed statement of facts.

Upon submission of the case to the chancellor on the pleadings and stipulation of facts, he rendered judgment in favor of plaintiff (here appellee), granting him the relief prayed of specific performance. Same was based upon his interpretation of the Ballenger will, as set out in his written opinion (made a part of the record), that the language used therein are words of descent or inheritance and not words of purchase, that the two Ballenger boys (appellee's remote grantors) took the fee in the real estate devised them by their father and, accordingly, that all deeds executed by them conveyed a good and sufficient fee-simple title thereto.

Appellant, assailing the propriety of this judgment so construing the will and requiring his specific performance, prosecutes this appeal.

The only question presented here is the ability of the appellee to convey a fee-simple title to the lots as contracted for.

The determination of this question turns upon the construction of clause 2 of the Ballenger will, whereby testator devised to his two youngest sons, Robert Morrow and James B. Ballenger, all his real estate, adding thereto the words "and at their death to their legal heirs."

The addition of these words makes it our problem to determine what interest did the testator intend, by the language employed in this provision of his will (which is susceptible to either of the two constructions urged), to give to his two youngest sons; i.e., did testator, a layman who wrote his will, intend to use them only as words of limitation, vesting his sons with a fee estate in the land devised, or did he use them as qualifying words of purchase, having the effect of giving them only a life estate, with remainder passing at their death, in fee, to their heirs.

It is contended by appellee that the testator's two sons were by the wording of this clause thereby given a fee-simple title to the land, while on the other hand, appellant contends with equal earnestness that they took only a life estate thereunder, with remainder over at their death to their legal heirs, the gift of a remainder over indicating the first gift was intended as a life estate, even if the language of this clause, without the added words making a gift over, might have passed a fee.

This question, as to whether the estate devised to the first taker is a fee or a life estate, arises first in every case and must be determined from a consideration of the whole will. Beemon v. Utz, 217 Ky. 158, 289 S.W. 221; Penick v. Lewis, 194 Ky. 231, 238 S.W. 745; Whicker v. Strong, 258 Ky. 135, 79 S.W. (2d) 388; Blessing v. Johnston, 249 Ky. 777, 61 S.W. (2d) 635; Hopson's Trustee v. Hopson, 282 Ky. 181, 138 S.W. (2d) 365; Ruh's Ex'r v. Ruh, 270 Ky. 792, 110 S.W. (2d) 1097.

Testator's intention must be gathered, if possible, from the language used by him in his will and technical rules of construction will not be resorted to unless the meaning of the language of the will is ambiguous.

Here we find that the language used by...