Hodge v. Lovell's Trustee

• Decision Date: 14 January 1936
• Parties: Hodge v. Lovell's Trustee et al.
• Court: United States State Supreme Court — District of Kentucky

262 Ky. 509

Hodge v. Lovell's Trustee et al.

Court of Appeals of Kentucky. Common Law and Equity Division.

Decided January 14, 1936.

1. Wills. — Ordinarily word "parent" as used in will implies immediate parent, while word "ancestor" includes remote as well as immediate ancestors, unless "parent" is used in manner or under circumstances to indicate intention of testator to include grand-parent.

2. Wills. — To ascertain intention of testator, context of will as a whole must be considered.

3. Wills. — In construction of will, words "child" or "children" are construed to include grandchildren and are not limited to restrictive meaning when it appears that testator intended words to include grandchildren, when provisions of will would be inoperative without such construction or when statutes require such construction.

4. Wills. — In construction of will, presumption exists that gift to "children" means testator's immediate offspring, but such presumption must yield to contrary intention as gathered from context, so that effect is best given to whole disposition by construing "children" as synonymous with "issue."

5. Wills. — "Issue" within statute providing that, as applied to descent of realty, term should be construed to include all lawful lineal descendants of ancestor, includes all persons who might lawfully inherit estate (Ky. Stats., sec. 463).

6. Wills. — In construction of will, testacy is favored over intestacy.

7. Wills. — Where will is susceptible of two constructions, that construction is applied which disposes of entire estate.

8. Wills. — Heir can be disinherited only by express words or clear and necessary implication.

9. Wills. — Under devise to each of three daughters of testator for life with remainder to her issue or to other daughters or to child or children of deceased daughter to take share that would have gone to parent or ancestor, "child" or "children" held to include "grandchildren," so that grandson of daughter would take interest of his mother who predeceased original devisee (Ky. Stats., secs. 463, 2064, 4841).

Appeal from Kenton Circuit Court.

ROUSE & PRICE for appellant.

HUNT & BUSH for appellee trustee.

PECK, SHAFFER & WILLIAMS for appellee Marion Short.

OPINION OF THE COURT BY JUDGE RATLIFF.

Affirming.

Howard L. Lovell died testate in 1900, a resident of Kenton county, Ky., and his will was duly probated. He left surviving him Emma H. Lovell, his widow, and three daughters, viz., Mary L. Sayre, Fannie B. Lovell, and Virginia L. Hodge. Emma H. Lovell died in 1906, and Fannie B. Lovell died in 1924 without issue, having never been married, and that part of the testator's estate devised to her vested in her surviving sisters. Mary L. Sayre died in 1935. She was married to J.W. Sayre and had two children, both of whom predeceased her, one having died in 1918 without issue, and the other, Wilhelmeia Sayre, who was married to W.A. Dudley Short, died in 1916, survived by her husband, who died in 1917, and by her son, Marion L.L. Short, her only child.

Howell L. Lovell by his will created trusts for the benefits of his widow and his three daughters named above. The Security Trust Company of Lexington, Ky., qualified as trustee and is now acting as such. Upon the death of the widow, the corpus of the trust estate for her benefit was, in accordance with the provisions of the trust, turned over to the trustee for the three daughters to be administered in accordance with the provisions of the will. The trust estate was divided into three parts, and a separate trust was set up for each of the three daughters.

It does not become necessary to discuss the will in its entirety but only such portions thereof as are herein in controversy. After making provisions for the widow, item 10 of the will is in part as follows:

"Tenth: Subject to the Life Estate of my said wife, in the personal property hereinbefore directed to be selected, set apart and held for her during her natural life and her right to enjoy the income therefrom as aforesaid during her natural life, I give, bequeath and devise said personal property so directed to be set apart to provide an income for my said wife during her natural life and all the rest of my residue of my real and personal property of every kind wherever the same may be as follows: viz: To each of my three daughters, Mary L. Sayre, wife of J.W. Sayre, Fannie B. Lovell, and Virginia L. Hodge, wife of John T. Hodge, one equal one-third part thereof for and during her natural life, subject however, to the terms, considerations, limitations and restrictions hereinafter contained and mentioned, as a part of her equal one-third part of my estate, for her natural life. * * *"

After naming the specific property devised, then follows that portion of the will, the construction of which is determinative of the issue before us on this appeal, which reads as follows:

"* * * Upon the death of each of my daughters the remainder of that portion of my estate bequeathed and devised to her for and during her natural life, shall go to the children the issue of her body, whom she may leave to survive her provided however, if any one of my said daughters, should die not leaving children, the issue of her body to survive her, or if the children who she may leave to survive her should all die before attaining the age of twenty-one years not leaving children, the issue of their body, to survive them, and in either of those events the remainder of that portion of my estate bequeathed to each of my daughters for and during her natural, life, shall go to my other children in equal proportions; or if any one or more of them, be then dead leaving children the issue of the body of the one so deceased shall take the share that would otherwise have gone to their deceased parent or ancestor; but the interest which any one of my daughters may take or obtain in my Estate, by from or through another of my daughters, who may die, without leaving issue to survive her or by from or through my deceased daughters children in case they should all die before attaining the age of twenty-one years without leaving children the issue of their bodies, to survive them, shall be an estate for and during the life only of said surviving daughter or daughters with remainder over as hereinbefore provided in the case of the other estate bequeathed and devised to her subject to all the provisions, terms, conditions and limitations herein imposed and of the trust herein created, and provided for with reference to the estate bequeathed and devised to my said daughters, for and during their natural lives."

A controversy arose between the parties respecting that portion of the testator's estate devised to Mary L. Sayre, that is, whether upon her death, under the provisions of the will, it vested in her sister, Virginia L. Hodge, who was the only surviving daughter of the testator, or vested in the appellee, Marion L. L. Short, the surviving child of Wilhelmeia Sayre, the daughter of Mary L. Sayre. Thereupon this action was brought in the Kenton circuit court by Virginia L. Hodge under the Declaratory Judgment Law of Kentucky for a declaration of rights under the will. A judgment was rendered by the circuit court adjudging that the estate devised to Mary L. Sayre for life under the will of the testator passed thereunder to, and vested in, Marion L.L. Short, the grandchild of Mary L. Sayre, and to reverse that judgment Virginia L....