Harvey v. Bell

• Decision Date: 16 June 1904
• Citation: 81 S.W. 671,118 Ky. 512
• Parties: HARVEY et al. v. BELL et al.
• Court: Kentucky Court of Appeals

81 S.W. 671

118 Ky. 512

HARVEY et al. v. BELL et al.

Court of Appeals of Kentucky.

June 16, 1904

Appeal from Circuit Court, Mercer County.

"To be officially reported."

Suit between W. P. Harvey and others and W. C. Bell and others. From the judgment Harvey and others appeal. Affirmed. that it was evident that the general scheme of testator was to prevent his property falling to those strangers to his blood and, in view of the various provisions, the condition as to the death of the devisees without issue was not limited to death in the lifetime of testator.

Helm Bruce & Helm and Robt. Harding, for appellants.

W. S Pryor, W. G. Welsh, and E. H. Gaither, for appellees.

HOBSON J.

This controversy involves the title to 356 acres of land in Mercer county and certain town lots in Harrodsburg, formerly owned by William Payne, who died testate in the year 1890. He had but one child, a daughter, who married Dr. W. P. Harvey, and died many years before her father, leaving four children, William P., Sibbie May, Lila Kate, and Frank Wayne Harvey; all of them, at his death, of age. William P. Harvey died on May 9, 1891, unmarried, and without issue. Sibbie May married W. C. Bell, and died on April 2, 1897, leaving surviving her one child, W. C. Bell, Jr. Lila Kate married J. W. Loving, and died childless on February 12, 1899. Frank Wayne Harvey, on December 12, 1898, in consideration of $12,500--$7,300 paid cash, and $5,200 to be paid in three years--conveyed to W. E. Mitchell two storehouses and lots in Harrodsburg and an undivided one-third interest in the 356 acres of land. On October 17, 1899, in consideration of $1 and other consideration, he conveyed to his father, Dr. W. P. Harvey, the same property; also his interest in the real estate vested in his sister Lila under the will of their grandfather. After this he died on July 8, 1902, unmarried, and without issue. So that the little boy, W. C. Bell, Jr., is the only living representative in blood of the four grandchildren of the testator. It is insisted for him that he is, under the will of William Payne, the sole owner of the property in contest. It is insisted for Mitchell that Frank Wayne Harvey took in fee under the will the property devised to him, and that Mitchell's title is therefore good. It is insisted for Dr. Harvey that the children took the estate devised to them in fee, and that he, as heir at law of those who are dead without issue, is entitled to the interest they held in the property at their death. The controversy turns on the proper construction of the will, which is as follows:

"Realizing the uncertainty of life, and being of sound mind and disposing memory, I, Wm. Payne, of Harrodsburg, Ky. do make this my last will and testament.

"1. I direct my executor to sell all my personal property, except as hereinafter directed, collect all debts due me, pay all my just debts, and the residue he is to hold and dispose of as herein devised.

"2. I hereby specifically devise to my granddaughter, Lila Kate Harvey, in trust as hereinafter named, two store buildings [here follows description].

"3. I hereby specifically devise to my granddaughter, Sibbie May Harvey, in trust as hereinafter stated, two store buildings and lots [here follows description].

"4. I hereby specifically devise to my grandson, Frank Wayne Harvey, in trust as hereinafter stated, my two store buildings and lots [here follows description].

"5. I bequeath absolutely that all my beds, bedding, furniture, books and pictures, tableware be divided equally between my two granddaughters, Lila Kate and Sibbie May Harvey.

"6. I bequeath absolutely to my grandson, Frank Wayne Harvey, my gold watch and chain and breech-loading shotgun.

"7. I devise and bequeath three-fourths of all the residue of my estate, whether real, personal or choses in action, in trust, to my aforesaid granddaughters and my aforesaid grandson, Frank Wayne Harvey, to be equally divided between them.

"8. The property or interest in property herein devised or bequeathed to my said grandchildren, Lila Kate, Sibbie May and Frank Wayne Harvey, in trust, to be managed and controlled for their respective benefits by their father, W. P. Harvey, whom I hereby appoint by executor and their trustee, and desire that he shall act in both said capacities without bond or security. Said trust is qualified thus: If said W. P. Harvey deems it wise at any time he may hand over all or any part of their property to said devisees, or any of them, at any time, and free the same from trust. The evidence that the same is so freed from trust shall be the written deed of said W. P. Harvey filed and recorded as other deeds, both as to the realty and personalty so freed from trust. I also empower said W. P. Harvey to appoint his successor as trustee, but the freeing said property from trust is a power lodged only in said Harvey as trustee.

"9. Should either of my said grandchildren, Lila Kate Harvey, Sibbie May Harvey, or Frank Wayne Harvey, die without issue of his or her body living, I devise the property herein devised to the one so dying to be equally divided between the remaining ones or their issue; or if all should so die without issue, then their respective shares I devise to --.

"10. Should the contingency arise as provided for in the next preceding section (9) of this will, the property thus received by my said grandchildren or either of them is to be in trust under the same powers as expressed in the eighth clause of this will.

"11. The other fourth of the residue of my property and estate, three-fourths of which is disposed of in the 7th clause of my will, I devise and bequeath to the children of my grandson Wm. P. Harvey, or their issue. Should my said grandson, Wm. P. Harvey, die without child or children or their issue, the estate devised and bequeathed by this clause or section of my will, I devise to be held and disposed of as provided in the 9th clause of this my will.

"12. The said property I devise in the said eleventh clause or section of this will I put in the hands of my son-in-law, W. P. Harvey, as trustee to control and manage as he may deem best; and I hereby empower him at his discretion to use the income, issues or profits for the comfortable support and maintenance of my said grandson Wm. Payne Harvey during his life, but it is to be distinctly understood that I give my said grandson no interest in said income, issues or profits, leaving it wholly discretionary with my said trustee or his successor to use the said income, issues or profits in that way if he deems proper. I specially direct that said income, issues and profits cannot be alienated or charged in any way by my said grandson, Wm. Payne Harvey, or any creditor of his; and I hereby specially declare and will that any attempt to alienate said income, issues and profits by said grandson, or any attempt to subject said income, issues or profits by any creditor of said William Payne Harvey, shall terminate the right to use any of said issues, income or profits for the support and maintenance of said Wm. Payne Harvey.

"13. I hereby provide that if any of my devisees, or my said grandson, Wm. Payne Harvey, contests this will, or tries to cancel the same by any proceeding in court, then the provisions in this will as to such contestee shall be considered annulled, and such contestee shall have only $100.00 of my estate in lieu of the devise as to such, and in such event the lapsed devise or bequest of such is to go to those of my said grandchildren, Lila Kate, Sibbie May, Frank Wayne Harvey, who do not contest, to be held in the same way as the devise to them so taking. Should my grandson, Wm. Payne Harvey, so contest my will, then and in such event, the discretionary power lodged in my trustee as to said income, issues and profits is taken away from said trustee, and in such event the said income, issues and profits are to be paid over to the devisees not contesting.

"14. I hereby empower my said executor and trustee to sell any or all of said real estate specifically or generally devised and reinvest the same either in or out of this state, the reinvested property to be held on the same trusts as the original."

The circuit court adjudged the property to W. C. Bell, Jr. Appellants maintain that the condition as to the death of the devisees without issue is limited to their death in the lifetime of the testator, and rely on section 2342, Ky. St 1903: "Unless a different purpose appear by express words or necessary inference, every estate in land created by deed or will without words of inheritance shall be deemed a fee simple, or such other estate as the grantor or testator had power to dispose of." At common law words of inheritance were essential to the creation of a fee, and great strictness was applied in the enforcement of the rule. 2 Blackstone, 108. To remedy this it was enacted in this state by section 11 of the act of 1796 as follows: "Every estate in lands which shall hereafter be granted, conveyed or devised to one, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple, if a less estate be not limited by express words or do not appear to have been granted, conveyed or devised by construction or operation of law." 1 Morehead & B. Ky. St. p. 443. In the revision of 1851 the verbiage was changed as follows: "Every estate in land created by deed or will without words of inheritance shall be deemed a fee simple or such estate as the grantor or testator had power to dispose of, if a less estate be not limited by express words or by necessary inference." 2 Stanton's Rev. St. p. 227. In the revision of 1873 this was again changed and put in the present form. Gen. St. p. 585. The...