Middleton's Heirs v. Middleton's Devisees

• Decision Date: 16 November 1897
• Citation: 43 S.W. 677
• Parties: MIDDLETON'S HEIRS v. MIDDLETON'S DEVISEES.
• Court: Kentucky Court of Appeals

43 S.W. 677

MIDDLETON'S HEIRS v. MIDDLETON'S DEVISEES.

Court of Appeals of Kentucky.

November 16, 1897

Appeal from circuit court, Shelby county.

"Not to be officially reported."

Action by Bettie Rice and others against Pearl Rice and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Warner W. Jesse, for appellants.

L. C Willis, for appellees.

HAZELRIGG J.

Anthony Middleton died in 1879, leaving a daughter, Nancy Elizabeth who had theretofore married J. H. Rice, and to whom several children had been born, and who were living at Middleton's death. Several children were also born after his death. The interest these children take under the will of the grandfather, and when that interest vests, are the sole questions presented on this appeal. The clause of the will to be considered is as follows: "Item 2. After the payment of my debts and funeral expenses I hereby give and devise to my beloved daughter, Nancy Elizabeth Rice, all my estate real and personal, as her sole and separate estate, to be held, used, and enjoyed by her during her life, and at her death the same shall go and descend in equal shares to her children, and to the descendants of such of her children as may be dead." If the estate in interest vests only upon the death of the life tenant, and goes to her children then living, as she is still alive, the title the adult children and the life tenant seek to pass in this proceeding would be defective, and of uncertain tenure, because it cannot be known who of the children may be living at her death. But if under the will, it was the estate in possession thereby that was to be postponed until the determination of the life estate, and the title was to vest in the children in being at the death of the testator, opening up to let in such of them as were after-born, then the estate in all the children is a vested remainder, and is unaffected by the death of the life tenant, save only in its possession and enjoyment. If the time be postponed until their mother's death for the estate to vest, then the title is suspended awaiting a future event, and this is a construction not to be thought of unless required by express language. It is manifest that we have no such language here. It can hardly be said that the language even imports a postponement of the estate in interest, rather than a postponement of it in possession. If we attend strictly to the language, the implication is that what the mother has goes or descends to the children at her death. And this is not the estate in interest, but the estate in possession, and therefore it is the estate in possession which "shall go or descend" to the children at her death. Nor is this to go or descend to the children "then living," or to the children "surviving" the life tenant. No such language is used. If, therefore, we say that the estate vests at the death of the mother, we do violence to a fair implication to the contrary, and besides, as we shall see, violate a fundamental rule of construction, based on the long-settled policy of our law, to the effect that the estate shall vest in cases of this kind at the very earliest possible moment compatible with the requirements of the language to be construed. And if we say the limitation as to the children refers to those living at the death of the life tenant, we supply vital words not used by the testator, with the result that the estate in interest is suspended indefinitely. Moreover, it is well settled that the use of the words "shall go," or "descend," or of the adverbs "when," etc., and "then," etc do not import a contingency, or "make anything necessary to precede the vesting of a remainder, but only express the time when a remainder shall take effect in possession, not when it shall become vested." Williams v. Williams, 91 Ky. 554, 555, 16 S.W. 361; Williamson v. Williamson, 18 B. Mon. 375. Such words relate merely to the time of the enjoyment of the estate. In our opinion, the language under consideration presents the case of a pure vested remainder, in virtue of which each child, born and to be born, is invested with an indefeasible fee, the enjoyment and possession of which only are postponed until the determination of the life tenancy. And this is in accord, not only with what we conceive to be the manifest intention of the testator as expressed in the words of the devise, but is in line with the unbroken current of authority. It is in the elementary books that a devise to "A. for life, and after the...