Mitchell v. Simpson

• Decision Date: 15 January 1889
• Citation: 10 S.W. 372,88 Ky. 125
• Parties: MITCHELL v. SIMPSON.
• Court: Kentucky Court of Appeals

10 S.W. 372

88 Ky. 125

MITCHELL v. SIMPSON.

Court of Appeals of Kentucky.

January 15, 1889

Appeals from circuit court, Bourbon county; J. R. MORTON, Judge.

Action by John Simpson, to recover of James Mitchell the last payment due for a tract of land sold by Simpson and his wife to Mitchell. Defendant in his answer alleged that plaintiff was unable to comply with his covenant to convey said land in fee-simple, because by the provisions of Jessie Hall's will, under which Mrs. Simpson derived her title, she (Mrs Simpson) took only a life-estate in said land. Demurrer by plaintiff was sustained to this answer, and defendant appeals.

Russell Mann, for appellant.

McMillan & Talbott, for appellee.

BENNETT J.

The sole question in this case is, what is the proper construction of the third clause of Jessie Hall's will which reads as follows: "I give to my daughter Anna Simpson one hundred and sixty acres of land lying in and around Centreville, Ky. Said land is allotted to her, and valued at fifty dollars per acre. I also will her two hundred acres of land in Scott county, Ky. off of what is known as 'Sheep Farm.' Said land is allotted and valued to her at eighteen dollars and fifty cents per acre. The said land is willed to my daughter and her bodily heirs, except the two hundred acres in Scott county, Ky. which she is to have the right to dispose of as she wishes." The fourth clause of the will contains a devise to his daughter Paulina Henry, in which is this language: "Said lands I will to my daughter Paulina and her bodily heirs, excepting the last two named tracts, which she may sell if she wishes." The estate which he devises to his son James F. Hall is devised to him absolutely.

It is well settled that the words "heirs of the body," "heirs lawfully begotten of the body," and other similar expressions, are appropriate words of limitation, and must be construed as creating an estate tail, which by our statute is converted into a fee-simple, unless from the entire will it reasonably appears that the testator used said words, not in their technical sense, but as synonymous with the word "children." If said words are used in the latter sense, then they are construed as words of purchase and not in the technical sense as words of limitation, which are construed by our statute as conveying a title in fee to the immediate devisee. In construing the language of the will it appears, at first blush,...