Garrard v. Kendall

• Decision Date: 27 October 1909
• Parties: GARRARD et al. v. KENDALL.
• Court: Kentucky Court of Appeals

121 S.W. 997

GARRARD et al. v. KENDALL.

Court of Appeals of Kentucky.

October 27, 1909

Appeal from Circuit Court, Fleming County.

"Not to be officially reported."

Action by Nellie McDowell Garrard and others against M. H. Kendall. From a judgment for defendant upon demurrer to the petition plaintiffs appeal. Affirmed.

Jno. B McCartney, for appellants.

Worthington & Cochran, A. S. Kendall, and B. S. Grannis, for appellee.

NUNN C.J.

This litigation involves the construction of the wills of Lucien McDowell and Evaline B. McDowell. The will of Lucien McDowell, the husband, was executed November 11, 1891, and omitting the formal parts, is as follows:

"(1) I wish all my just debts and funeral expenses paid.

"(2) All my remaining property of whatever kind, real, personal and mixed, I hereby bequeath to my beloved wife, Evaline B. McDowell to be used as she sees fit for her comfort and support.

"(3) If any portion of said property should be left at her death it is to be equally divided among my children, or if they should be dead their children, if they have any. My granddaughter, Winn McDowell, is to stand in her father's place and to be an equal heir with my own children. But if she should die without heirs then her share to be equally divided among the other heirs.

"(4) All the property that shall revert to my daughters or to my granddaughter under this will is to be for their sole use and benefit free from any indebtedness incurred by their husbands if they have any."

The will of his wife, Evaline B. McDowell, was made February 11, 1892, and that part to be considered is as follows:

"(1) I wish my husband, Lucien McDowell, to have the control and management of my estate during his life if he should survive me, he is to enjoy the interest and emoluments arising therefrom equally with my children, but the principal is to remain intact for the benefit of my children.

"(2) After the death of myself and husband I wish all the property to be equally divided among my daughters, Caroline Howe, Magdalene, Nelly and Mabel McDowell, and my grandchild Winn McDowell, daughter of my deceased son, Wm. W. McDowell.

"(3) This property is to be held for the sole use and benefit of my children and grandchild, Winn McDowell, free from any indebtedness incurred by their husbands, if they have any.

"(4) If any of them die without children then their portion is to be equally divided among the remaining children or if they should be dead and leave children then the children are to succeed to their mother's share as if she had been alive.

"(5) I wish the furniture and household effects to be left in charge and for the use of my single daughters as long as any of them remain unmarried. In case they should marry then this property is like all my other property to be equally divided among my heirs."

The wife, Evaline B. McDowell, died in the year 1896, and the husband, Lucien McDowel, died in the year 1902. Administration with the wills annexed was granted to Nellie McDowell Garrard of both estates, and in the settlement thereof she paid in about the year 1895, something over $2,200 from the estate of Evaline B. McDowell to Nellie McDowell, who was the wife of M. H. Kendall, and about the same time she paid to Nellie McDowell Kendall from her father's estate (Lucien McDowell's) about the sum of $500. Nellie McDowell, wife of appellee, died in the year 1905, leaving no children or child surviving her. Appellants brought this action against appellee alleging that the sums before stated were received by appellee's wife from the two estates mentioned, and that they were used in improving his property by the erection of houses, etc., and that as their sister Nellie died without children the same, under the wills aforesaid, went to her brothers and sisters, appellants, and prayed for a judgment against appellee for these amounts, and asked that the same be enforced as a lien against his property. A demurrer was sustained to the petition, and appellants appealed.

The devisee in the will of Lucien McDowell was his wife, Evaline B. McDowell, who died in the year 1896, six years before the death of her husband, and therefore the devise lapsed, and under section 4843, Ky. St. (Russell's St.§ 3966), his estate passed at his death as if no will had been made. Newton v. Southern Baptist Theological Seminary, 115 Ky. 414, 74 S.W. 180, 24 Ky. Law Rep. 2310; Schroeder v Bohlsen, 119 Ky. 305, 83 S.W. 627, 84 S.W. 535, 26 Ky. Law Rep. 1237. The will of Lucien McDowell gave his wife the fee to the property devised to be "used as she saw fit." The language following this expression is repugnant to the first clause, to wit: "If any portion of said property should be left at her death it is to be equally divided among my children." The wife was given power to use the property or to sell and dispose of it as she saw proper. In the case of Clay v. Chenault, 108 Ky. 77, 55 S.W. 729, 21 Ky. Law Rep. 1485, the court said: "It seems to us that the decided weight of authority--if, indeed, there be any to the contrary--is to the effect that a will or deed...