Martin v. Palmer

• Decision Date: 22 November 1921
• Citation: 193 Ky. 25,234 S.W. 742
• Parties: MARTIN v. PALMER.
• Court: Kentucky Court of Appeals

234 S.W. 742

193 Ky. 25

MARTIN v. PALMER.

Court of Appeals of Kentucky.

November 22, 1921

Appeal from Circuit Court, Hopkins County.

Suit by Margaret M. Palmer, as administrator with will annexed of John Palmer, against Margaret Irene Martin. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

H. F S. Bailey, of Madisonville, for appellant.

Fox &amp Gordon, of Madisonville, for appellee.

HURT C.J.

John Palmer, the testator, died in January, 1920, leaving a last will and testament, which was duly probated after his death. The will is as follows. viz.:

"I John Palmer, considering the uncertainty of this life, and being of sound mind and memory, do make and publish this my last will and testament, in the manner and form following:

First. I give, device and bequeath to my beloved wife, Margaret M. Palmer, in trust for our granddaughter, and adopted daughter, Margaret Irene Martin, my house and lot, all furniture, pictures, souvenirs, dishes, all goods and chattels of what kind and nature soever. Also my half interest in 25 acres of land situated in Caldwell county, Ky. Also all money I may have in bank, or invested otherwise, and insurance, if any of which I may be the beneficiary.

To have and to hold all the above property to the sole and proper use of same, in trust of our granddaughter and adopted daughter, Margaret Irene Martin. And I name my wife, Margaret M. Palmer, administrator of the above property during her life. Upon the death of my wife, said Margaret M. Palmer (should I be first diseased), all property, money or insurance, etc., whatever kind remaining I give, devise and bequeath to our grandauter and adopted dauter, Margaret Irene Martin, for her sole use and benefit.

And I name W. J. Faulls of St. Charles and Richard Palmer of Dawson Springs as guardians and administrators until said Margaret Irene Martin is 21 years of age."

The appellee, Margaret M. Palmer, qualified as administratrix with the will annexed, and thereafter she filed this suit, seeking a construction of the will for the purpose of determining what estate, if any, she has, under the will, in the property of the testator. Margaret Irene Martin, the appellant, was made a defendant in the suit. The circuit court adjudged that the will "does devise and bequeath to the said Margaret M. Palmer all the property mentioned in said will, to be her property to hold, use and sell and convey same as she may see fit," and at her death, if any of the property then remains undisposed of, such portion shall become the property of Margaret Irene Martin. From the judgment, the guardian ad litem of Margaret Irene Martin has appealed.

At the outset, it must be said, if it should be conceded that the provisions of the will give to Margaret M. Palmer, in her individual capacity, an estate of any kind, the court has placed upon the will a construction of which no will is susceptible, as we apprehend. It has here adjudged that she has an absolute estate in fee in the property mentioned in the will. It has been continuously and uniformly held that if property is devised to one, generally or indefinitely, with a power to dispose of it as the devisee sees fit, it is a gift in fee, and a limitation over of what remains undisposed of at the death of the devisee, to whom an absolute estate is given, is void. So if the will does make a gift in fee of the property to Margaret M. Palmer, and such an estate, the court construes the will to give here with an unlimited power of disposition, is a gift in fee, the limitation over of what remained undisposed of is obliged to be void. Clay v. Chenault, 108 Ky. 77, 55 S.W. 729, 21 Ky. Law Rep. 1485; Dulaney v. Dulaney, 79 S.W. 195, 25 Ky. Law Rep. 659; Trustees Presbyterian Church v. Mize, 181 Ky. 571, 205 S.W. 674, 2 A. L. R. 1237; Becker v. Roth, 132 Ky. 429, 115 S.W. 761; Barth v. Barth, 38 S.W. 511, 18 Ky. Law Rep. 840; Moore v. Webb, 2 B. Mon. 282; Dills v. Adams, 43 S.W. 680, 19 Ky. Law Rep. 1169. Where a life estate is devised with a power of disposition, though unlimited, a limitation over of what remains undisposed of at the end of the life estate is valid. Pedigo's Extr. v. Botts, etc., 89 S.W. 164, 28 Ky. Law Rep. 196; Coats' Ex'r v. L. & N. R. R. Co., 92 Ky. 263, 17 S.W. 564, 13 Ky. Law Rep. 557; McCullough's Adm'r v. Anderson, 90 Ky. 126, 13 S.W. 353, 11 Ky. Law Rep. 939, 7 L. R. A. 836. Hence it is clear that if the court was correct in adjudging that the property was devised to the appellee, generally and indefinitely, with absolute power of disposition, the appellant, Margaret Irene Martin, could have no interest in the property whatever, and any limitation over to her of the portion undisposed of by the appellee was void, and upon the other hand, if the limitation over to the appellant is valid, an estate in fee was not given to the appellee by the will, and it could not exceed an estate for life with power of disposition, but either construction of the will it must be conceded is contrary to all of its provisions, if the language is given its usual meaning and significance.

The statement, which it is agreed that several persons will make as to what disposition of his property the testator said that he was going to make before making the will, and what disposition he said that he had made of his property after making the will, cannot be considered as shedding any light upon the meaning of the language he did use in disposing of his property by the will. A last will and testament is required to be in writing, and the intentions of the testator are ascertained from the written instrument. If verbal declarations of a testator were admissible in interpreting a will, it can be readily seen that the proof of such declarations might result in an entire change of the intentions of the testator as expressed in the will, and he being dead would be unable to deny or explain any declaration which it was proven that he had made, and his actual intention as expressed in writing would be thwarted. Long v. Duvall, 6 B. Mon. 219; Allen v. Van Meter, 1 Metc. 264; ...