McCormick v. McCormick's Adm'r

• Decision Date: 30 September 1909
• Citation: 121 S.W. 450
• Parties: McCORMICK v. McCORMICK'S ADM'R et al.
• Court: Kentucky Court of Appeals

121 S.W. 450

McCORMICK v. McCORMICK'S ADM'R et al.

Court of Appeals of Kentucky.

September 30, 1909

Appeal from Circuit Court, McLean County.

"Not to be officially reported."

Action by S. R. McCormick against Alice McCormick's administrator and others. From a judgment dismissing the petition, plaintiff appeals. Affirmed.

Taylor & Clarke, for appellant.

J. H Miller, for appellees.

HOBSON J.

F. V Johnson died a resident of McLean county July 6, 1904 leaving surviving him his wife, Alice Johnson, and four infant children. His will, which was duly admitted to probate, is as follows:

"This is to certify that I, F. V. Johnson, being of sound mind, have this day made this, my last will and testament as follows, viz: I give and bequeath to my wife, Alice Johnson, all of my personal property and real estate during her natural life, and at her death to be equally divided among my bodily heirs.

"I also give to my wife, Alice Johnson, the right to sell or transfer any or all of my property, personal or real, at any time she thinks best."

After his death, the widow, Alice Johnson, married S. R. McCormick. On December 14, 1906, she and her husband, McCormick, conveyed the real estate owned by F. V. Johnson to one Ashley for $2,300, and with $2,200 of this money she purchased and paid for two other tracts, and had the land conveyed to her in fee simple. Shortly thereafter she died, and S. R. McCormick instituted this action in the McLean circuit court to have one-third of the land set apart to him for life as surviving husband under the statute. This was resisted by the guardian of the four Johnson children, and upon a final trial of the action the court held that Alice McCormick under the will of her first husband took only a life estate in the land devised by him, and that she having sold this land, and having invested the proceeds which represented the land in the two tracts in controversy, she had only a life estate in these two tracts. He therefore dismissed the petition of S. R. McCormick, and adjudged the land to the four infants absolutely. S. R. McCormick appeals.

The will of F. V. Johnson is very clearly expressed. It requires the aid of no technical rules of construction to ascertain the intention of the testator. He gave the property to his wife during her natural life, and at her death to his children equally. He also gave her the right to sell any of the property at any time she...