Hanks v. McDanell

• Decision Date: 23 April 1948
• Parties: HANKS et al. v. McDANELL et al.
• Court: Kentucky Court of Appeals

210 S.W.2d 784

307 Ky. 243

HANKS et al. v. McDANELL et al.

Court of Appeals of Kentucky

April 23, 1948

Appeal from Circuit Court, Gallatin County; Ward Yager, Judge.

Action by Louisa A. Hanks and others against H. Pryor McDanell and others for construction of the will of J. H. McDanell deceased. From a judgment for the defendants, the plaintiffs appeal.

Judgment affirmed.

B. S. Grannis, of Flemingsburg, and William G. Reed of Carrollton, for appellants.

Frank S. Connely, of Warsaw, and Vest & Vest, of Walton, for appellees.

THOMAS Justice.

In March, 1936, J. H. McDanell died testate, a resident of Gallatin County. His will was probated in the Gallatin county court on April 20 of the same year, and it prescribed in part:

'After payment of my just debts and funeral expenses, I give and bequeath to my beloved wife, Sallie A. McDanell, and the residue of my property, real and personal, to be used, enjoyed and disposed of by her in any way she may choose with this provision however--that, should any of said property belonging to my estate remain at the death of my said wife, the same shall be divided equally among Mollie Bledsoe, Louisa Hanks, John W. McDanell and Flora Wooley.'

The testator was survived by his wife, Sallie A. McDanell, who died testate on January 10, 1947. Her will was duly probated in the same court, the third clause of which says:

'I will the balance of my estate both real and personal to my sister Louisa A. Hanks her lifetime and at her death to L-Bledsoe Sr, W. A. Bledsoe and Mary Lee Stolz share and share alike.' This action was filed in the Gallatin circuit court by the executor and devisees of Sallie A. McDanell against the devisees of her husband to whom he had devised the remnant of his estate that his wife did not consume in her lifetime. Plaintiffs sought a construction of the will of J. H. McDanell which they asserted gave to their decedent an absolute fee in the property devised to her by her husband. On the other hand the defendants in their answer alleged that J. H. McDanell devised to his wife only a life estate and that the devise to them of the remnant thereof that the wife did not consume during her lifetime was and is valid. The court sustained that contention and adjudged 'that the said Sallie A. McDanell took a life estate with power of disposition, and for this reason the limitation over to Mollie Bledsoe, Louisa Hanks, John W. McDanell, and Flora Wooley is valid, and they and their heirs and/or devisees now take that part of the James H. McDanell estate remaining in the hands of Sallie A. McDanell at the time of her death.' From that judgment plaintiff prosecutes this appeal.

There is thus presented to us the question whether or not the ancient and universally applied rule by all courts that the intent of the maker of a written document, as gathered from its four corners, shall prevail, unless such intent conflicts with some statutory provision within the jurisdiction, or is against public policy. That rule is referred to generally as the cardinal rule for the construction of written documents and especially as applied to deeds and wills. It is also described as the 'Polar Star' interpretive rule, which designation this court has adopted in a number of its opinions. Notwithstanding that super governing rule this court, and perhaps a few others, have maimed it and have taken a large bite out of it by adjudging that when the first taker of conveyed property under the writing submitted for construction, is initially conveyed a fee title it is then incompetent and invalid for the maker to thereafter modify, qualify or reduce the apparent fee title of the first taker so as to reduce it to a life estate and that any gift over of any remnant after the death of the first taker is null and void. The only reason given for that departure from the Polar Star rule is that it is against public policy for the maker of the conveyance to cut down, or otherwise modify, or qualify the first taker's title from an apparent fee to a lessor estate. That rule which we conclude is an arbitrarily established one, as will hereinafter be pointed out, will be referred to as the 'Biting' rule.

It will be remembered that the Polar Star rule is that the intent of the maker of the instrument shall prevail and be enforced, unless it antagonizes a statute or is against public policy. We have no statute forbidding the modification or qualification of the apparent fee title given to the first taker so as to reduce that title to a life estate. Therefore, the only ground for the declaration and application of the 'Biting' rule, which as we have said has prevailed in this state for a number of years, is that it is against public policy.

In Vol. 35 of Words and Phrases, Perm.Ed., the compiler thereof, beginning on page 274 and extending to and including page 291, cites a multiplicity of cases defining Public Policy as administered by courts other than legislative action, a typical definition of which is found in the case of Pittsburgh, C., C. & St. L. R. Co. v. Kinney, 95 Ohio St. 64, 115 N.E. 505, 506, L.R.A.1917D, 641, Ann.Cas. 1918B, 286, in which that court said:

"Public policy' is the community common sense and common conscience extended and applied throughout the state to matters of public morals, public health, public safety, public welfare, and the like; it is that general and well-settled public opinion relating to man's plain, palpable duty to his fellow men having due regard to all the circumstances of each particular relation and situation.'

The text in 12 A.J. 662, 663, sec. 167, defines public policy, the violation of which will render a transaction void, thus:

'The test is whether the parties have stipulated for something inhibited by the law or inimical to, or inconsistent with, the public welfare. An agreement is against public policy if it is injurious to the interests of the public, contravenes some established interest of society, violates some public statute, is against good morals, tends to interfere with the public welfare or safety, or, as it is sometimes put, if it is at war with the interests of society and is in conflict with the morals of the time.'

That definition, in substance, is the same as that given by all text writers. In the case of City of Princeton v Princeton Electric Light & Power Co., 166 Ky. 730, 739, 179 S.W. 1074, 1078, we defined public policy as 'A principle of law which holds that no one can lawfully do a thing which tends to be injurious to the public or is contrary to the public good (citing 32 Cyc. 1251) * * * and where there is no legislative prohibition of a certain...