Mann v. Frese
| Decision Date | 13 June 1924 |
| Citation | 263 S.W. 21,203 Ky. 739 |
| Parties | MANN v. FRESE. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.
Action by Constance Mann against Tonika Frese. Judgment for defendant, and plaintiff appeals. Affirmed.
J. L Richardson and Charles Carroll, both of Louisville, for appellant.
E. J McDermott and Ernest Macpherson, both of Louisville, for appellee.
This appeal presents the will of Wm. Frese, who died in 1894, for construction. This litigation is between his adopted daughter, Constance Mann, and his natural daughter, Tonika Frese; the first contending that by the will of Wm. Frese she took a remainder in fee of one-half of his entire estate at the death of his wife, Marie Frese, to whom was given a life estate, or, if not that, then a fee in one-third of all of said estate. The other contends that the wife of Wm. Frese under clause 1 of the will hereafter copied, took a fee in all of the property, real, personal, and mixed, owned by said Freze at the time of his death. Clause 1 of the will reads:
"I give and bequeath to my beloved wife Marie Freze all my property of every nature and description, real, personal and mixed, to have and to hold the same in fee simple with power to sell for reinvestment."
While there are other clauses of the will which apparently limit the fee devised by the first clause, we think the whole is reconcilable with the contention of appellee that Mrs. Marie Frese took a fee in all of the property of her husband, Wm. Frese, subject to be defeated as to two-thirds thereof by her remarriage. It is urged, however, by appellant, that clause 1, devising a fee to the wife, limited that estate by the expression "with power to sell for reinvestment." We do not think such a construction can reasonably be placed upon this clause of the will.
One who takes a fee by devise has, of course, power to sell the property for reinvestment or otherwise, and the words "with power to sell for reinvestment" were mere surplusage, when added to the expression "in fee simple"; the devisee acquiring no rights through that expression with respect to the property which the fee-simple title did not vest in her. The second paragraph of the will provides that in case the wife should remarry she should take one-third of the estate in fee simple, the remaining two-thirds to go to the daughters, Constance and Tonika equally. This created...
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Lee v. Tipton
...Hopson's Trustee v. Hopson, 282 Ky. 181, 138 S.W.2d 365 (1940); Hutter v. Crawford, 225 Ky. 215, 7 S.W.2d 1043 (1928); Mann v. Frese, 203 Ky. 739, 263 S.W. 21 (1924). But see Thomas v. Stafford, 305 Ky. 559, 204 S.W.2d 940 (1947); Mouser v. Srygler, 295 Ky. 490, 174 S.W.2d 756 (1943); Morga......
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Hopson's Trustee v. Hopson
... ... remarriage. To the same effect are Hinkle v. Hinkle, ... 168 Ky. 286, 181 S.W. 1116, and Mann v. Freze, 203 ... Ky. 739, 263 S.W. 21 ... With ... the words "so long as she remains my widow" ... eliminated, the will of A ... ...
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Walton v. Jones
...by our consideration of the will involved in this case. Moreover, we are confirmed in that conclusion by the opinion in Mann v. Freze et al., 203 Ky. 739, 263 S.W. 21, recently decided case. Manifestly, the appellant can convey to the appellee only such title to the land described in the pl......
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Brinley v. Brinley's Adm'r
...of a suitable home for his brother and wife, only gave power which had already been fully given in the second clause ( Mann v. Freze, 203 Ky. 739, 263 S.W. 21). sixth clause of the will clearly undertakes to dispose of what property, devised to Joseph, might be found to be remaining after J......