Hopson's Trustee v. Hopson
| Decision Date | 05 March 1940 |
| Citation | 138 S.W.2d 365,282 Ky. 181 |
| Parties | HOPSON'S TRUSTEE v. HOPSON et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Logan County; Doyle Willis, Judge.
Action by James Hopson's trustee in bankruptcy, J. U. Wade against Harriet S. Hopson and others for the declaration of rights in a tract of land wherein defendant filed a demurrer. From a judgment dismissing the petition after sustaining the demurrer, the plaintiff appeals.
Affirmed.
J Wilbur Wade, of Bowling Green, and I. G. Mason, of Adairville, for appellant.
Charles I. Dawson, of Louisville, and Oscar M. Smith, of Russellville, for appellees.
A. H Hopson died testate in 1918, leaving surviving him his widow Harriet S. Hopson, and seven adult children. His will, which was duly probated by the Logan county court, reads as follows:
One of the testator's sons, James Hopson, was adjudicated a bankrupt in 1938 in the United States Court for the Western District of Kentucky, and J. U. Wade, his trustee in bankruptcy, brought an action against the widow and children of A. H. Hopson to have declared the rights of the parties in respect to a tract of land in Logan county, containing 164 3/4 acres, owned by A. H. Hopson at the time of his death. It was alleged in the petition that Harriet S. Hopson, by virtue of her husband's will, took a defeasible life estate in the land and that James Hopson and the other children each owned a vested remainder interest, the same to be taken into possession upon the death of their mother or upon her remarriage. It was further alleged that the defendant Harriet S. Hopson claimed an interest in the land greater than a life estate, and that an actual controversy existed between her and the plaintiff as to their respective rights in the property. The court sustained a demurrer to the petition, the plaintiff declined to plead further, and his petition was dismissed. The chancellor did not expressly so state, but his ruling was necessarily based on the conclusion that the will of A. H. Hopson vested in his widow a fee in his real estate subject to defeasance upon her remarriage. The sole question for decision on this appeal is the proper construction of this clause of the will: "I give and bequeath to my beloved wife all my personal property and all my realty after all my just debts are paid so long as she remains my widow."
It is appellant's contention that the words "so long as she remains my widow" limited the estate given to the widow to a life estate, which was defeasible upon her remarriage, and that the remainder interest passed by descent to the seven children. In construing wills, the rule that the intention of the testator must be ascertained, if possible, and given effect is applied. Ruh's Ex'rs v. Ruh, 270 Ky. 792, 110 S.W.2d 1097; Young v. Madison's Ex'r, 252 Ky. 99, 66 S.W.2d 1. The testator's intention must be gathered, if possible, from the language used by him, and technical rules of construction will not be resorted to unless the meaning of the will is ambiguous or obscure. Whicker v. Strong, 258 Ky. 135, 79 S.W.2d 388; Price v. Aylor, 258 Ky. 1, 79 S.W.2d 350; Day's Adm'r v. Bright, 257 Ky. 359, 78 S.W.2d 43; Bowman v. Morgan, 236 Ky. 653, 33 S.W.2d 703. Of course, testamentary language, which by long usage and judicial recognition has come to have a fixed meaning, will be treated as having been used with that meaning by the testator. Blessing v. Johnston, 249 Ky. 777, 61 S.W.2d 635. Another rule of construction always applied is that a will must be so construed as to avoid intestacy unless it clearly appears from the language of the will that the testator intended to die intestate as to part of his estate. Goode v. Bonta, 267 Ky. 739, 103 S.W.2d 266; Hodge v. Lovell's Trustee, 262 Ky. 509, 90 S.W.2d 683; Corn v. Roach, 225 Ky. 725, 9 S.W.2d 1074; Anderson v. Simpson, 214 Ky. 375, 283 S.W. 941; Walton Bank & Trust Company v. Carpenter, 205 Ky. 629, 266 S.W. 358. Language somewhat similar to that used by A. H. Hopson in his will has been construed in a number of cases by this court apparently with conflicting results, but in each case the court has determined the meaning of the will from the language used by the testator and from a consideration of the will as a whole. The words "so long as she remains my widow" have not been given a fixed meaning by judicial recognition. Appellant relies chiefly upon Napier v. Davis, 7 J. J. Marsh. 283, 284, Morgan v. Christian, 142 Ky. 14, 133 S.W. 982, and Charles v. Shortridge, 277 Ky. 183, 126 S.W.2d 139, in support of his contention that the clause of A. H. Hopson's will heretofore quoted gave to his widow only a defeasible life estate. In Napier v. Davis, the will involved was a Tennessee will, and disposed of land in Tennessee. In the first clause of the will the testator gave to his wife certain personal property and a one-half interest in three slaves. Then followed this sentence, "and also my plantation and land during her widowhood." The widow remarried and moved to Kentucky where she died in 1823. After her death, a dispute arose between the heirs as to the ownership of the slaves. It was held that the devise by the husband to his wife of property "during her widowhood" was forfeited upon the marriage of the widow. It was said in the opinion that the first clause of the will should be interpreted as limiting the widow's entire interest to her life or widowhood. The will was susceptible of no other construction, since the testator's intention to limit the devise to his wife to a life estate at most was apparent when the will was read as a whole. The second clause of the will read: "I give to my son, William Lewis, my land and plantation after his mother's death, or termination of her widowhood, and my negro boy Charles."
After holding that the first clause of the will gave to the wife a defeasible life estate, the court said:
In Morgan v. Christian, the court...
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