Johnson v. Johnson's Administrator

• Decision Date: 02 December 1927
• Citation: 222 Ky. 180
• Parties: Johnson, et al. v. Johnson's Administrator.
• Court: United States State Supreme Court — District of Kentucky

222 Ky. 180

Johnson, et al. v. Johnson's Administrator.

Court of Appeals of Kentucky.

Decided December 2, 1927.

1. Wills. — "Relations," as used in will authorizing equal division of remainder between relations, held to mean those who would take under statute of descent and distribution.

2. Wills. — Though statute of descent and distribution must be looked to in order to ascertain beneficiaries under will leaving property to "relatives," will itself must be looked to in order to ascertain what shares they take.

3. Wills. — Will providing for equal distribution of remainder among relations, coupled with additional gift to one of beneficiaries, held to require distribution per capita.

Appeal from Warren Circuit Court.

RODES & HARLIN, ROBERT M. COLEMAN, JR., and A.J. OLIVER for appellants.

FINN & SIMS and FORD & FORD for appellees.

OPINION OF THE COURT BY JUDGE DIETZMAN.

Reversing.

N.P. Johnson died in 1926 testate. His will is as follows:

"I want $5,000 put in trust to keep up the family graves and I also want a monument put at the head of the lot to cost $2,500 or $3,000. The remainder to be divided equally between my relations. I also want my niece Jessie to have my diamonds. This is my wish. January 3, 1926.

                                        "N.P. JOHNSON."
                

This action was brought to have construed that part of the will reading, "the remainder to be divided equally between my relations." The questions are, first, what did the testator mean by the expression "my relations?" and, second, whether the division between those determined to be such relations should be per capita or per stirpes. This case has been splendidly briefed on both sides, but counsel did not at the time they briefed this case have before them the case of Wooten's Trustee v. Hardy, et al., 221 Ky. 338, 298 S.W. 963. In the Wooten case, by paragraph 12 of the will involved, certain specific bequests were made principally for the care of the testator's cemetery lot and for charitable purposes. Following such specific bequests came this provision:

"Then to my surviving relatives sharing equally in all remaining moneys if should be any — with one exception — if S.F. Wooten survives or lives at the time, he be given four times the amount of any one relative; or should he be taken from life unto death before this time arrives any remaining member or members of his family shall receive his share."

In this Wooten case we were among other things called on to construe this section of the will and to determine what the word "relatives" meant, and whether the will provided for a capita or a per stirpes distribution. Addressing ourselves to the first question, we said:

"The word `relatives' in its popular sense embraces all, even the remotest kindred, and is so indefinite it has been found necessary in the construction of wills and similar instruments to limit it by confining it to the `next of kin' who would take under the statute of descent and distribution. . . . This rule harks back to the early English case of Hardwick v. Glynn, 1 Atk. 496, 27 English Reports 299. In the last cited report there is an elaborate footnote citing a long list of English cases to the effect `that the word "relations" or "kindred" in a will without any specification of what relatives or kindred are intended, denotes such only as are within the statutes of descent and distribution;...