Hayes v. Hayes

• Decision Date: 19 September 1913
• Citation: 154 Ky. 729,159 S.W. 544
• Parties: HAYES et al. v. HAYES et al.
• Court: Kentucky Court of Appeals

159 S.W. 544

154 Ky. 729

HAYES et al. v. HAYES et al.

Court of Appeals of Kentucky.

September 19, 1913

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Action between Alice V. Hayes and others and Pauline Hall Hayes and others, to construe a will. From an adverse decree, Pauline Hall Hayes and others appeal. Reversed and remanded, with instructions.

Charles W. Milner, of Louisville, guardian ad litem, and Logan &amp Milner, of Louisville, for appellants.

Stanley R. Wolf, of Louisville, for appellees.

MILLER J.

John S Wood died on January 25, 1911, leaving the following will:

"I John S. Wood, of 36th and Woodland Ave., Parkland, addition of Louisville, Jefferson county, state of Kentucky, being of sound mind and capable of exercising my reasoning faculty and without persuasion from any source whatever, do hereby of my own free will and accord, will and bequeath my estate as follows:

"To my beloved wife Nancy Jane Wood all of my property both personal and real estate, insurance moneys, pension moneys, together with any moneys due me from any source whatever, or that may be found upon my person or premises at the time of my death or thereafter, to keep and enjoy the profits thereof until her death, unless she should remarry in which event the entire estate is to be subject to the same condition as if she had died, which I will now state as follows:

"In the event of the death of my wife, my entire estate is to revert to Alice v. Hayes, who at the time of this writing lives at, or near Eleventh and Chestnut St., this city, or her heirs Pauline Hall Hayes, age 15 years, Jno. Granton Hayes, age 14 years, Elva Lee Hayes, age 11 years, Richard Edgar Hayes, age 8 years, and Margaret v. Hayes, age 6 years.

"This real estate property is to be held intact until Pauline Hall Hayes the eldest heir is 21 years of age.

"I hereby appoint as my executor, of this will, and trustee of my estate, Geo. Hunt McAlister, of Louisville, Ky. who shall execute a bond which shall be approved.

"He shall have power to collect all moneys due me from any source whatever, pay funeral expenses, and he is further empowered to pay all lawful debts using the balance of my insurance due me from other parties, also to sell such personal effects as cows, hogs, chickens and etc.

"After all debts have been paid he shall invest the balance of the money for the benefit of my wife, Nancy Jane Wood, for her personal use and maintenance.

"My executor is further empowered that after the death of Nancy Jane Wood, and Alice v. Hayes, and when the eldest child Pauline H. Hayes becomes 21 years of age to sell all my property giving to Pauline H. Hayes 1/6 of the estate in cash, putting the remainder of the money on interest to be divided among the other five heirs as each becomes twenty-one years of age."

Alice V. Hayes is the daughter of John S. Wood, and this appeal by the guardian ad litem of the infant defendants, who are the children of Alice V. Hayes, presents a controversy between Alice V. Hayes and her children as to their respective rights under said will. The guardian ad litem contends that the infants take either a vested remainder in the estate of John S. Wood, or a joint estate with their mother, Alice V. Hayes, while Alice V. Hayes contends that she takes an absolute fee in remainder, subject to the life estate of the widow, Nancy Jane Wood. The chancellor was of opinion that Alice v. Hayes took a fee-simple title upon the death or remarriage of Nancy Jane Wood, if Alice should then be living, otherwise to her children in fee; and from that judgment the infants, by their guardian ad litem, prosecute this appeal.

The appellants contend that the clause of the will which directs that, in the event of the death of the testator's wife, his entire estate should go to his daughter, Alice, " or her heirs," naming them, should be read " and her heirs," in order to arrive at the true intention of the testator, and that the word "heirs" when so used is a word of purchase and not a word of limitation, since it would then sufficiently appear that the term "heirs" was used to distinguish particular persons who might stand in that relation at the happening of a certain event, and not the whole line of heirs in succession. On the other hand, it is contended on behalf of Alice V. Hayes that the words "or her heirs," as used in the will, are to be considered as words of limitation and not of purchase.

It is an elementary and well-established principle of law in the construction of wills that the entire instrument must be taken into consideration in order to ascertain the meaning and purpose of the testator, and in construing a devise the word "or" will be changed to "and" when necessary to effectuate the true intention of the testator. Williams v. Williams, 91 Ky. 547, 16 S.W. 361.13 Ky. Law Rep. 293.

Counsel for appellants concede that, if the testator had provided that upon the termination of the life estate of his widow the property should revert to "Alice V. Hayes and her heirs," and had made no further provision, there might be an impelling necessity for presuming that the testator used the word "heir" as a word of limitation, but that in mentioning the heirs by name the presumption is changed, since he thereby placed emphasis upon them as the takers under the will, and used the word "heirs" as a secondary term and merely descriptive of and as a substitute for "children" and, therefore, as a word of purchase.

In Ebey v. Adams, 135 Ill. 80, 25 N.E. 1013, 10 L. R. A. 162, the testator, as in the case before us, devised his estate to his widow during her life or widowhood, and upon her death or remarriage the residuum of the estate, after paying certain specific legacies, was devised to the testator's "children," or "their heirs," to wit (naming his six children) share and share alike. In upholding the claim of the children to take as purchasers, the Illinois Supreme Court said: "The words 'heirs' or 'their heirs' are technically words of limitation; but in this and other cases they are used as words of purchase, and always have that operation when it sufficiently appears that the term is used to designate a particular person, or particular persons, who may stand in that relation at the happening of a certain event or at a certain period, and not to the whole line of heirs in succession. No one can have heirs while living. The word 'or', therefore, as here used, indicates substitution, and the payment or distribution is to be made at a fixed period, i. e., upon the sale by the executors after the termination of the intermediate estate. It would seem clear, therefore, that the persons who were to take are such of the children as might be living at the time of the distribution, and the heirs of such as might have predeceased."

In Wren v. Hynes, 2 Metc. 129, the devise was of certain bank stock to be "equally divided among all my surviving children, or their heirs." It was held that the words "or their heirs" were used not as words of limitation, but as words of purchase, and that they were intended to operate as an alternative devise, or a devise over, in the event that any of the children should die leaving issue before the period of distribution. The court there further held that extrinsic evidence afforded by other provisions of the will was proper to be considered in arriving at the construction given. See, also, Robb v. Belt, 12 B. Mon. 643.

In Feltman v. Butts, 8 Bush, 115, the will read as follows: "I now give the said lot to my brother Samuel during his life, and after his decease I will said lot to his heirs." The court held that the word "heirs" as there used, in reference to a living person as the ancestor, means, in its popular sense, children who are heirs apparent, and that, as Samuel had living children at the date of the will, the court should not hesitate to conclude that the testator used the word "heirs" in the instrument in place of and for the word "children."

In Underwood v. Magruder, 87 S.W. 1076, 27 Ky. Law Rep. 1165, the devise was to Walter Ellen Magruder for life, with remainder "to Mary Jane Slemmons and her heirs." After pointing out that the word "heirs" as generally used is a word of limitation and not of purchase, the court further said: "It is true there are a few cases in which the word 'heirs' in a deed or will has been held synonymous with 'children'; but in all these cases the ruling rests upon the ground that there was enough in the instrument to show that the word was not used in its ordinary sense as a word of limitation, but in the sense of 'child'. There is nothing in the instrument before us to give the word any other than its usual meaning."

In Naville v. American Machine Co., 145 Ky. 344, 349, 140 S.W. 559, 37 L. R. A. (N. S.) 153, the court reviewed the cases at some length and deduced therefrom the following general rules of construction: "From the foregoing we are enabled to divide the decisions of this court, bearing upon the question under consideration, into three general classes: First, devises by a father or mother to a son, daughter, or blood relation, in which the language 'to him and his children forever' is used; second, devises to a blood relation and his children where the word 'forever' is not used following the word 'children'; and, third, devises by a husband to his wife and her children. In all those cases falling within the first class the word 'children' has been construed as meaning 'heirs,' and under this construction it has been held that they took no interest in the property devised. In the second class of cases it has been held that the children took a fee, subject to the life estate of a their parent. ...