Noel v. Jones

• Decision Date: 25 November 1919
• Citation: Noel v. Jones, 185 Ky. 835, 216 S.W. 98 (Ky. Ct. App. 1919)
• Parties: NOEL v. JONES ET AL.
• Court: Kentucky Court of Appeals

216 S.W. 98

185 Ky. 835

NOEL v. JONES ET AL.

Court of Appeals of Kentucky.

November 25, 1919

Appeal from Circuit Court, Franklin County.

Action between Silas M. Noel and Maggie Jones and others involving construction of a will.From a judgment designating what property passed to each devisee, and declaring testator died intestate as to certain after-acquired city property, Silas M. Noel appeals.Affirmed.

Leslie W. Morris and Hazelrigg & Hazelrigg, all of Frankfort, for appellant.

B. G Williams, of Frankfort, for appellees.

HURT J.

The grandfather of appellant, Silas M. Noel, who bore the same name, died, in the year 1895.Previous to his death, on the 8th day of January, 1894, he executed his last will and testament, which was duly probated after his death.At the date of the execution of his will he was the owner of a farm which consisted of about 401 acres, and which he had acquired title to from one Proctor, and upon which he resided.Adjoining this tract of land, and between it and the Leestown turnpike, there were four small tracts of land, of which he was the owner.One of these small tracts contained about 12 acres, and the other three contained less than 1 acre each.These tracts were situated on the western side of the Proctor tract.He was, at that time, also the owner of three tracts of land, which together contained 113 acres, and which were situated upon the north side of the Proctor tract, and adjoined each other; but only one of these tracts adjoined the Proctor tract, for a distance of about 30 feet, and was separated from it by a fence.He also owned two houses and lots upon Anne street, in Frankfort, Ky. one upon Wilkinson street, and another upon Clinton street, in the same city and a vacant lot in Thorn Hill, near by.His wife was then living, and also two daughters, who were married, and whose names were Maggie Jones and Clara Noel, respectively.

By the first, second, third, fourth, and fifth clauses of his will he disposed of his entire personal estate.The sixth clause of his will, the construction of which is in controversy here, is as follows:

"Sixth.I give and bequeath to my wife and Maggie Jones, my daughter, the home place, known as the Proctor farm, containing about 425 acres and the remainder of the land and the house and lot on Wilkinson street, in Frankfort, Ky. and the house and lot on Clinton street, in Frankfort, Ky. and the lot at what is known as Thorn Hill, near Frankfort, Ky. to be held and used by them jointly until the death of my wife; and at the death of my wife, Maggie Jones is to have the home place, containing about 425 acres, during her life, and at her death said place is to be divided as follows: One-half of said farm to her oldest child, Silas Noel Jones, and the remainder to be divided equally amongst all her children, including said Silas Noel Jones, and in the case of the death of any of her children during infancy, the others are to inherit his or her portion, and at the death of my wife, I give and bequeath the remainder of my land, outside of the home farm, and the two houses and lots and the lot above mentioned, to my daughter, Clara Noel, during her life, and at her death to go to her son, Silas M. Noel.I also give and bequeath to my daughter, Clara Noel, wife of John C. Noel, my two houses and lots on Anne street, between Main and Market streets, in Frankfort, Ky. during her life, and at her death to go to her son, Silas M. Noel."

After the execution of the will, the testator became the owner of a house upon Washington street, in Frankfort, and another lot in Thorn Hill.This action was instituted, among other things, for a construction of the will, and thereby to have it determined as to what property passed to each of the devisees under the will, as well as the rights of the devisees therein, respectively.The widow of the testator having died, the trial court adjudged that the will devised to Maggie Jones the Proctor farm, or "home place," consisting of the original Proctor farm and the small tracts of land owned by testator, which adjoin it on the west side, and bind upon the Leestown turnpike road, during her natural life, with remainder to her children.These small tracts contain 12.984 acres, .508 of an acre, .095 of an acre, and about one-half of an acre, respectively.It was also decided that the will devised to Clara Noel, with remainder to her son, Silas M. Noel, the appellant, the house and lot on Wilkinson street, in Frankfort, the house and lot on Clinton street, and the lot in Thorn Hill, which testator owned at the time of the execution of the will, but that the house and lot on Washington street, and the lot in Thorn Hill, which were acquired by testator after the making of his will, did not pass to any of the devisees under the will, but that testator died intestate as to those pieces of property, and they passed to his heirs, in accordance with the laws of descent and distribution, and from this judgment the appeal herein was taken.

As to the two houses and lots upon Anne street, in Frankfort, it is conceded that these were devised by the will to Clara Noel for life, with remainder to her son, the appellant, and were not in controversy in this action.It is contended by appellant that the court erred in adjudging:

(1) That the four small tracts of land, adjoining the original Proctor farm upon the west, and abutting upon the Leestown turnpike road, were a part of the Proctor farm, or "home place," of the testator, and were a part of the devise to Maggie Jones for life, with remainder to her children, upon the death of her mother, the testator's widow.

(2) That the house upon Washington street and the lot in Thorn Hill, acquired by testator after the execution of the will, were undevised, and did not pass to Clara Noel for life, with remainder to appellant, under the will.

These contentions will be considered in their order.

(a) The soundness or unsoundness of the first contention, because of which a reversal is sought, turns upon a determination of what the testator meant and intended when he said in the will that "Maggie Jones is to have the home place, containing about 425 acres," or rather what he intended that the "home place, containing about 425 acres," should include.It is not overlooked that in the second line of the sixth clause, when making the joint devise to Maggie Jones and his wife, the testator described the "home place" as being "known as the Proctor farm," and, if there was nothing further to shed light upon the testator's meaning, it would seem that he used the term "home place" as meaning the Proctor tract proper but it will be observed that he describes the joint devise to his wife and Maggie Jones as the "home place," known as the Proctor farm, containing about 425 acres, and when he came to devise the same property to Maggie Jones, to take effect in possession after the death of his wife, he described it as the "home place, containing about 425 acres."The Proctor farm, proper, contained only a fraction of an acre in excess of 400 acres, and since the...