Mouser v. Srygler

• Decision Date: 19 October 1943
• Citation: 295 Ky. 490,174 S.W.2d 756
• Parties: MOUSER et al. v. SRYGLER.
• Court: Kentucky Court of Appeals

174 S.W.2d 756

295 Ky. 490

MOUSER et al. v. SRYGLER.

Court of Appeals of Kentucky

October 19, 1943

Appeal from Circuit Court, Hart County; L. B. Handley, Judge.

Proceeding between Lola Mouser and others and Mary Adcock Srygler to construe a will. From a judgment for Mary Adcock Srygler Lola Mouser and others appeal.

Affirmed.

Finley Gibson, Jr., of Louisville, and Roy F. Mouser, C. E. Nichols and Harry H. Wilson, all of Munfordville, for appellants.

Dowling & Baird, of Munfordville, for appellee.

CAMMACK Justice.

We are called upon in this appeal to construe the will of G. R Tharpe. The will follows: "I, G. R. Tharpe of sound mind and disposing memory, do make publish and declare this as my last will and testament. I will, devise and bequeath all of my real and personal estate to my daughter Mrs. Maude Adcock Tharpe so long as she remains a widow, or until she remarries, then in that event to go to her daughter, Mary Adcock. I will and bequeath to Harvey Murray, my grandson the sum of Five ($5.00) Dollars."

The appellants challenge the correctness of the chancellor's ruling to the effect that the daughter, Maude Tharpe, took a life estate in all of the testator's real and personal property, and that, on the death of the daughter, or when she ceased to be a widow, all of the property should go to the granddaughter, Mary Adcock Srygler. We believe the ruling to be correct. The devise was to the daughter so long as she remained a widow, with the further provision that her interest would terminate in the event she remarried. We think it is clear that the remainder was to go to the granddaughter, Mary Adcock Srygler.

When we construe a will we view the instrument as a whole for the purpose of ascertaining the intent of the maker. Furthermore, we look to the attending circumstances at the time of the execution of the instrument, including the condition, nature and extent of the testator's property, and the motives which may have influenced him in disposing of his property in the manner in which it was done. Cummings v. Nunn, 290 Ky. 609, 162 S.W.2d 213.

The record discloses that Maude Tharpe had married Will Adcock to which union eight children were born, the youngest being Mary, who was some four years of age when her parents separated. Several years prior to the death of G. R. Tharpe in 1929, and after the separation, Will Adcock took all of the children, except Mary, to California,...