Poore v. Poore

• Citation: 11 S.W.2d 721,226 Ky. 668
• Parties: POORE et al. v. POORE et al.
• Decision Date: 07 December 1928
• Court: Kentucky Court of Appeals

11 S.W.2d 721

226 Ky. 668

POORE et al. v. POORE et al.

Court of Appeals of Kentucky

December 7, 1928

Appeal from Circuit Court, Christian County.

Action by Douglas Graham, as executor of the estate of Fanny B Bragg, deceased, against Will Poore and others, for the construction of decedent's will. From an adverse judgment, Will Poore and certain other defendants appeal. Reversed, with directions.

Alvan H. Clark and White & Clark, all of Hopkinsville, and Gordon Gordon & Moore, of Madisonville, for appellants.

S. Y Trimble, of Hopkinsville, for appellees.

DRURY C.

On March 16, 1926, Mrs. Fanny B. Bragg, a resident of Christian county, Kentucky, departed this life. On March 19, a paper dated May 11, 1925, was probated as her will. Omitting the formal introduction and conclusion, that paper is:

"(1) I desire that all of my just debts be paid as soon as possible after my death and a marker placed at my grave.

(2) I hereby will, bequeath and devise the residue of my estate, both real and personal to my brother H. H. Poore of Christian county, Kentucky, and to my sister Mrs. Ella Turner, of Santa Monica, California, share and share alike, and in the event of the death of either to the survivor.

(3) I hereby appoint Douglas Graham, of Pembroke, in Christian county, Kentucky, executor of this my last will and testament, hereby authorize him to sell any and all real estate or personalty of which I may die possessed, at public or private sale, in his discretion and upon such time and terms and conditions as he may think best, and give him full power to convey title to the purchaser."

Mrs. Bragg was about 70 years old. Her husband, her ancestors, and all her descendants were dead. Her only relations were a brother, a sister, and some nieces and nephews, the children of deceased brothers. The names of these parties, and their relation to each other and to Mrs. Bragg, is indicated by the outline below, in which the names of those who were then dead are in italics, and following them are the names of their descendants then surviving.

(H. H. Poore.

(Ella Turner.

( Richard H. Poore"Ruth Schleifer.

(( Will Poore.

(( Richard H. Poore.

((W. H. Poore.

( Thomas Poore" (James Z. Poore.

(( Fannie Muehlke.

(( Mary D. Sales.

(Fanny B. Bragg.

From this it will be seen that, if Mrs. Bragg had died intestate, her property would have passed as follows: One-fourth to H. H. Poore, one-fourth to Ella Turner, one-fourth to Ruth Schleifer, and one twenty-fourth to each of the six children of Thomas Poore.

On the day this will was probated, Douglas Graham, the executor named therein, qualified as such and entered upon the discharge of his duties. On May 13, 1926 (54 days after the probate of this will and 57 days after the death of Mrs. Bragg), her sister and devisee, Ella Turner, then a citizen and resident of California, died intestate, and left surviving her neither husband, ancestors, nor descendants. H. H. Poore contends that, by the will of Fanny Bragg, Ella Turner took an estate that would be terminated by her death at any time, and, now that she is dead, he, as surviving beneficiary under the will of Mrs. Bragg, took her entire estate. Ruth Schleifer, Will Poore, et al. contend that, as Ella Turner was alive when Mrs. Bragg died, she took an absolute fee-simple title to one-half of Mrs. Bragg's estate. To protect himself, the executor brought this suit against all of them, to obtain a construction of the will of Mrs. Bragg. The matter was heard, and the court sustained the contention of H. H. Poore, and adjudged that he was entitled to all of it. From that judgment Ruth Schleifer and the children of Thomas Poore have appealed.

This whole controversy grew out of the use in this will of these 12 words: "And in the event of the death of either to the survivor." The question is: Does this mean the death of either of these beneficiaries before the death of Mrs. Bragg, or does it mean their death at any time? It would seem that a moment's reflection should solve the problem, for Mrs. Bragg says, "and in the event of the death of either," thus speaking of death as something that might or might not happen, yet we know that death is the one dread certainty that comes to all of us; so she could not have meant death at any time, for that is not a contingency-that is a certainty. Therefore she must have meant the death of one of these before the happening of some other event. There is nothing in the will to indicate that she could have contemplated any other event than her own death, and it would seem, therefore, to follow that what she meant was, ""and in the event of the death of either of them before my death, then to the survivor." Whether or not one of these beneficiaries might die was not a contingency. She knew they both would die. She did not know when, and the contingency indicated by this will was the possibility of the death of one of these beneficiaries before she died.

"Where there is an immediate gift in the will to A, and a disposition of the property to another 'in case of his (A's) death,' or ' in the event of his death,' or with any similar expression referring to the death of A, not as an event which is certain to occur, but as a contingent event, no time being mentioned, the gift over will take effect only if A shall die during the lifetime of the testator." Underhill on the Law of Wills, vol. 1, p. 457, § 342. To the same effect are Alexander's Comm. on Wills, vol. 2, p. 1267, § 865; Schouler on Wills, Ex'rs and Adm'rs (6th Ed.) vol. 2, p. 1427, § 1283; Jarman on Wills, vol. 3, p. 605; Page on Wills, § 1139; Thompson on Law of Wills, p. 255, § 384; Thompson on Real Property, vol. 3, p. 713, § 2574; 37 Cyc. 631; 40 Cyc. 1499; 28 R. C. L. 260, § 233.

We have a very strong domestic case. In 1870, John P. Wills died testate, and, after making provision for his wife, then provided:

"It is my will that, after the special devise above, that all my property be equally divided among my four living children, Martha Ann Flynn, John G. Wills, Benj. E. Wills and Mary Elizabeth Wills, under the restrictions and exceptions hereinafter made."

The restrictions and exceptions made by him in a later part of his will are these:

"In case of the death of either of my children, I will that their said interest shall go to their children, in case they have any; if not, it is to go equally to my four living children, or the heirs of their body, or such as may be living."

John G. Wills survived the testator and took possession of one-fourth of his father's property. He sold a portion of this property to William S. Franklin, but Franklin refused to accept the conveyance tendered by Wills, because he questioned the power of Wills to convey him absolute title. Thereupon John G. Wills instituted an action against Franklin for specific performance. The trial court held that John G. Wills took only a life estate and dismissed the petition, whereupon John G. Wills appealed to this court, and in the case of Wills v. Franklin, 8 Ky. Op. 185, this court reversed the judgment of the trial court, and held that John G. Wills took a fee-simple title under the will of his father. Later John G. Wills died testate. Whereupon the children and devisees of his father began an action in ejectment against the devisees of John G. Wills to recover the property which John G. Wills had taken under the will of his father, John P. Wills. They were successful and the devisees of John G. Wills appealed. In an opinion written by Judge Pryor, in Wills v. Wills, 85 Ky. 486, 3 S.W. 900, 9 Ky. Law Rep. 76, this court reversed that judgment, and again held that John G. Wills took a fee-simple title under the will of his father. The controlling applicability of that opinion becomes apparent when the words of contingency, upon the happening of which the devise over is to take effect, are placed side by side, with the words of contingency in this case.

In the case before us the words of In the will of John P. Wills the words

contingency are: of contingency are:

"And in the event of the death of "In case of the death of either of my

either." children."

The question is so thoroughly discussed in Judge Pryor's opinion that we shall not quote from it further than to say that the court held that the contingency of death to which the testator referred meant the death of John G. Wills during the lifetime of his father. He cites the case of Wren v. Hynes (2 Metc.) 129, which is to the same effect. In the recent case of Ford v. Jones, 223 Ky. 327, 3 S.W.2d 781, we had occasion to quote from the will of Salia E. McKinney. In that will the testator said:

"It is my wish after my death that all of my property, personal and real, be equally divided among my children. If one should die, then their proportion of my property should be equally divided among my surviving children."

In the case of Smith v. Tevis, 10 Ky. Op. 588, it was held that the words ""surviving children," as there used, meant children surviving the testator.

The appellee is relying on the cases of Harvey v. Bell, 118 Ky. 512, 81 S.W. 671, 26 Ky. Law Rep. 381 and Atkinson v. Kern, 210 Ky. 824, 276 S.W. 977, and numerous others like them; but in all the cases upon which the appellee is relying there are double contingencies involved. Not only is there the contingency of death, but there is united with it some other contingency. For example In Harvey v. Bell, supra, the contingency was "dying without issue." In Atkinson v. Kern, supra, the contingency was "dying without heirs." In Linton v. Hail, 201 Ky. 698, 258 S.W. 111, the contingency was ""dying without lawful issue." In Bradshaw v. Williams, 140 Ky. 160, 130 S.W. 985, the contingency was "dying leaving no living heirs of...