McKee v. McKee's Ex'r

• Decision Date: 20 October 1904
• Parties: McKEE v. McKEE'S EX'R. CHEEK v. CHEEK et al.
• Court: Kentucky Court of Appeals

82 S.W. 451

McKEE v. McKEE'S EX'R.

CHEEK v. CHEEK et al.

Court of Appeals of Kentucky.

October 20, 1904

Appeals from Circuit Court, Boyle County.

"Not to be officially reported."

Action between Ashby McKee and Mary McKee's executor and others. From the judgment Ashby McKee appeals, and Maggie McKee Cheek brings cross-appeal. Affirmed.

Humphrey Burnett & Humphrey, for Maggie McKee Cheek. Hardin & Hardin for Ashby McKee. Robert T. Quisenberry, for Mary McKee's Ex'rs. Morrison Breckinridge, guardian ad litem, for Francis Powell Cheek, Logan McKee Cheek, and Mary Ashby Cheek.

O'REAR J.

This action was brought for the construction of the last will of Mary McKee, of Danville, Ky. probated the 16th of September 1901. Omitting formal parts and others about which there is no controversy, the will is as follows:

"Second. I give, bequeath and devise to my daughter, Maggie McKee Cheek, wife of J. A. Cheek, my dwelling house and grounds attached, situate on the west side of third street, in the town of Danville, Ky. and bounded west by the 4th street of said town, east by 3d street, and north by property of Mr and Mrs. W. L. Welsh, and south by property of Mrs. Mahan and others, and also all the portraits and pictures, household and kitchen furniture, table ware, china and silver ware, and in other words, all the personal property used in and about said house and premises. All the said property both real and personal named in this the second clause of my will, I give, bequeath and devise to my said daughter, Maggie McKee Cheek, for and during her natural life, and at her death to pass and go to her children or their descendants, the issue of any deceased one, to represent the ancestor, and if at the death of said Maggie McKee Cheek, she has neither children nor descendants, then said above named property shall pass to and vest in my grandson, Ashby McKee, son of Alex and Sarah Riker McKee, or his descendants, if any, if he be not living, and if none, then to pass to and vest in my brothers and sisters or their descendants share and share alike, and the issue of any deceased one, to represent the ancestor." "Fourth. I give and devise to J. A. Cheek and G. W. Welsh, Jr., both of Danville, Ky. the sum of five thousand dollars, in trust however for the following use and purpose: Said $5,000 to be held, invested, controlled and managed by said trustees and the net income only, arising and realized from said fund, to be paid annually or semi-annually, as trustees may see fit, to Sarah Riker McKee, widow of my deceased son, Alex McKee, so long as she may live as his widow, and at her death as his widow, or at and upon her remarriage, should same occur, then said fund of $5,000.00 to pass to and vest in my grandson, Ashby McKee, if he be living, or his descendants, if any, if he be dead, and if he be not living and have no descendants, then said fund shall pass to and vest in the children of my daughter, Maggie McKee Cheek, or their descendants, if any. Should said fund of $5,000.00 under the above provision pass to and vest in said Ashby McKee, and he should die without issue or descendants, then said fund shall pass to and vest in the children of my daughter, Maggie McKee Cheek, or their issue or descendants.

"Fifth. I give and devise to J. A. Cheek and G. W. Welsh, Jr., both of Danville, Ky. the sum of five thousand dollars, in trust however for the following use and purpose: Said fund to be invested, controlled, held and managed by them, and the net income arising from said fund or realized therefrom to be paid annually by them to Susan McKee, widow of my son Samuel McKee, so long as she may survive and live as his widow, and at her death as his widow, or her remarriage, should same occur, said fund shall pass to and vest in my daughter, Maggie McKee Cheek, for and during her natural life, and at her death to pass to and vest in her children, or their issue or descendants, and in each and every instance in this will, the issue of a deceased one shall represent the ancestor.

"Sixth. All the rest and residue of my estate of every sort and kind, real, personal and mixed, including 640 acres of land in Holt county, Mo., and 160 acres of land in Clinton county, Mo., which I own, I now give, bequeath and devise as follows: Two-thirds of all said property to my daughter, Maggie McKee Cheek, for and during her natural life, with remainder to her children, and the other one-third of all said property to my grandson, Ashby McKee,

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