Fields v. Fields

• Decision Date: 10 January 1893
• Citation: 93 Ky. 619,20 S.W. 1042
• Parties: Fields et al. v. Fields et al.
• Court: Kentucky Court of Appeals

20 S.W. 1042

93 Ky. 619

Fields et al. v. Fields et al.

Court of Appeals of Kentucky.

January 10, 1893

Appeal from circuit court, Boyle county.

"To be officially reported."

Action for the construction of a clause in the will of Jeremiah Fields. From the judgment, Z. T. Fields and others appeal. Reversed.

Hazelrigg J.

The construction of following clause of the will of Jeremiah Fields is the only question involved on this appeal, namely "Item 5th. *** I hereby direct my executor to sell my undivided interest in said two tracts of land, *** and pay the proceeds of such sale equally to the children (that are alive at the time of distribution) of my brother William Fields, of Missouri, and the living children of my brother James Fields. In the event of the death of any of the parties to this bequest, then their portion is to go to any issue they may have left; and, if none is left, then their portion is to be given to the heir or heirs indicated above." William and James were dead when the will was made; the former leaving six, and the latter two, children.

The question is, do the children take per stirpes or per capita? And shall the $10,000 in the executor's hands be divided into two or into eight parts? The presence of some suggestive clause or expression in other portions of the will, indicatory of the testator's intent to the contrary, must be found, before we should disturb the equal distribution of the estate per capita among these children, as is apparently provided for, by a literal construction of the language used; and we observe, first that the sixth clause appears to furnish us some slight clew to the testator's meaning. He directs his executor to collect all money owing to him, by note or otherwise, to sell his bank stock, pay the few debts he owed, and "distribute the residue as follows, to wit: One fourth of the amount he, my executor, will pay to my sister, Jemima Fields, one fourth to my brother Frederick R. Fields (provided he is living at the time of distribution, if not his share is to be equally paid to the other three branches of my kindred named in this item 6th;) one fourth is to be paid to the children of my brother William Fields, dec'd and the remaining fourth to be paid to the children of my brother James Fields, dec'd." Thus the testator gives his estate to his sister, Jemima, as one branch of his kindred; to his brother Frederick, if living, and, if dead, then "equal...