Dennis v. Trustees of Choateville Christian Church

• Decision Date: 02 March 1956
• Citation: 290 S.W.2d 601
• Parties: Susie Alice DENNIS, Appellant, v. TRUSTEES OF CHOATEVILLE CHRISTIAN CHURCH et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 601

290 S.W.2d 601

Susie Alice DENNIS, Appellant, v. TRUSTEES OF CHOATEVILLE CHRISTIAN CHURCH et al., Appellees.

Court of Appeals of Kentucky.

March 2, 1956.

Rehearing Denied June 15, 1956.

Leslie W. Morris, Marion Rider, Frankfort, for appellant.

James P. Hanrahan, Ray Holbrook, Frankfort, for appellees.

STEWART, Judge.

George L. Dennis died testate, a resident of Franklin County, and his last will, probated April 10, 1945, after providing for the payment of his just debts and funeral expenses, including a grave marker, disposed of the residue of his estate in this clause of that instrument:

'Second, I hereby give and bequeath to my beloved wife, Susie Alice Dennis all of my property, personal, real and mixed to be used by her during her natural life and at her death the remainder to be invested and the proceeds to go to the upkeep of the Choateville Cemetery and I request the Farmers Bank and Capital Trust Company of Frankfort, Kentucky, to administer on same.'

The testator and Susie Alice Dennis had been married many years prior to his death, and she was his sole survivor. The estate consisted of a house and lot on Broadway Street in Frankfort and the household furniture and personal effects contained therein. The wife has occupied the house since the decease of her husband. Her sole income has been the rent from rooms leased out by her. She alleged in her complaint that she is now 84 years of age and in bad health, that she is no longer able to look after the property, and that the rent received from roomers, after the payment of the taxes, insurance and repairs, is insufficient to supply her with the necessities of life and the nursing and medical care she now requires.

Susie Alice Dennis instituted this action for a declaration of rights, alleging she acquired under the aforesaid will a life estate with the right to encroach upon and use such of the property as might be reasonably requisite for her comfort and support. Additionally, she sought a determination of her right to mortgage or sell the house and lot in order to provide her with further funds as needed, because of her advanced age and extreme illness. The chancellor adjudged the testator devised to Susie Alice Dennis only a bare life estate in the real estate with no power to invade the principal for any purpose. She appeals from this interpretation of the will.

The question presented is the construction of the phraseology in the second clause of the will, quoted above, particularly that portion wherein the testator stated all his property was 'to be used by her (his wife) during her natural life and at her death the remainder to be invested and the proceeds to go to the upkeep of the Choateville Cemetery * * *.' It should be emphasized, first, the testator devised the property to his wife 'to be used by her during her natural life,' and, second, at her death it is 'the remainder' of his estate that is to be invested and the proceeds to be employed in the upkeep of the cemetery.

In Webster's New International Dictionary, Second Edition, the word 'use' is defined among other things as, 'To convert to one's service; to avail oneself of; to consume'. The case of Miller v. Franklin County, 302 Ky. 652, 195 S.W.2d 315, 317, in construing the word 'use' in a statute which required that gambling devices when seized by a peace officer "shall be forfeited for the use of the state", had this to say: '* * * Were it necessary to precisely define the meaning and intent of the word 'use'--as so employed in that section of the statute--we would have no trouble in concluding that it means absolute appropriation, and without any qualifying language it means the absolute investiture of title. We have frequently so determined in an uncontradicted line of decisions interpreting the word as employed in wills, wherein a testator devised property unqualifiedly for the 'use' of his designated devisee. * * * One of the late cases, so determining, is Hopkins v. Howard's Ex'x, 266 Ky. 685, 99 S.W.2d 810. In that opinion we quoted from the prior case of ...