Prewitt v. Prewitt's Ex'rs

• Decision Date: 31 January 1947
• Citation: 199 S.W.2d 435,303 Ky. 772
• Parties: PREWITT et al. v. PREWITT'S EXECUTORS et al.
• Court: Kentucky Court of Appeals

199 S.W.2d 435

303 Ky. 772

PREWITT et al. v. PREWITT'S EXECUTORS et al.

Court of Appeals of Kentucky

January 31, 1947

Appeal from Circuit Court, Montgomery County; W. Bridges White Judge.

Action by Ed R. Prewitt's Executors, Edward R. Prewitt, Jr., and J. Dawson Brother, and others against Alfred N. Prewitt and others for construction of the will of Ed R. Prewitt. From an adverse judgment, the defendants appeal.

Judgment affirmed.

Thomas D. Grubbs, of Mt. Sterling, for appellants.

Lewis A. White, of Mt. Sterling, for appellees.

SIMS Justice.

This is a friendly action instituted by the executors, widow and the three children of Ed. R. Prewitt against testator's infant grand children for the construction of his will which reads:

'Ed R. Prewitt's Will.

November 27th, 1941.

This is my last and only will.

First that all my property be divided between my wife & three children according to law.

Second: That the title to the land received by my daughter, Kenney Prewitt Reynolds be in her and her children.

Third: That any child dieing without heirs the property is to divert to the other heirs.

Fourth: That my son Ed. R. Prewitt, Jr. and J. Dawson Brother administer on my estate and divide the land.

Ed. R. Prewitt, Sr.

March 20th, 1944.

As a codicial of my will, I desire that my son Edward R. Prewitt, Jr. and J. Dawson Brother act as executors of my estate without bond.

Ed. R. Prewitt, Sr.'

The chancellor in a exhaustive opinion wrote that the third paragraph of the will referred to the death of any children without leaving issue during testator's life, and that as all three of testator's children were living and had living issue at his death, all of the devised property vested at the death of testator. The grand children, acting through their guardian ad litem, appeal.

It is elementary in the construction of wills that the intention of the testator is to be gathered from the will as a whole--from the language used by the testator, Bowman v. Morgan, 236 Ky. 653, 33 S.W.2d 703; Donelson's Ex'r v. Coates, 299 Ky. 608, 186 S.W.2d 420; and the court may take into consideration the conditions surrounding the testator at the time the will is written to better appreciate his situation and ascertain his intention from the language used in the will, Jennings v. Jennings, 299 Ky. 779, 187 S.W.2d 459.

Both briefs recite that Mr. Prewitt was a man in his early 70's when he wrote his will, unaided and without legal advice. He was well educated and had been a successful farmer and took commendable pride in his family, whom he loved and in whom he had much confidence. His children lived near him with the exception of his daughter, Kenney, and he saw much of them and his grand children. Kenney's husband's business required him to move from place to place and that family lived in various states. Mr. Prewitt's farm consisted of 1000 acres, which had been in his family for a long number of years and of which he was quite proud. The surplus earnings from his extensive farming operations he invested in Government Bonds, and at the time of his death his personal estate amounted to approximately $75,000 and his farm was worth in round numbers $100,000. His widow is a lady of ample means and her personal estate is sufficient to maintain her in comfort independent of what Mr. Prewitt devised her.

With the rule in mind that the intention of the testator should be gathered from the will as a whole and in the light of the circumstances which surrounded the testator at the time it was written, let us examine Mr. Prewitt's will.

It is not seriously contended by appellants that the first paragraph of the will designated the title Mr. Prewitt's three children and his widow took in his estate, and it is tentatively admitted that he could limit or reduce by subsequent paragraphs the estate they were to take. The present rule in this jurisdiction is that a will is not completed until signed and that a clause or a paragraph devising property in fee may be limited by a subsequent provision of the will. Greenway v. White, 196 Ky. 745, 246 S.W. 137, 32 A.L.R. 1385; Donelson's Ex'r v. Coates, 299 Ky. 608, 187 S.W.2d 420.

Nor is there any disagreement between the parties that under the second paragraph of the will, the daughter, Kenney, took a life estate in the land devised her with remainder to her children. Our rule is that where land is devised to a parent and his or her children, nothing to the contrary appearing in the will, the parent takes a life estate with remainder vesting in the children. E. H. Shelman & Co. v. Livers' Ex'x, 229 Ky. 90, 16 S.W.2d 800; Stahr v. Mozley, 284 Ky. 552, 145 S.W.2d 40.

The real controversy in this case centers on paragraph three of the will 'that any child dieing without heirs the property is to divert to the other heirs.' However, it is admitted that the word 'heirs' in this paragraph was used in the popular or colloquial sense to mean children, which is in conformity with a long line of our decisions. Cecil v. Cecil, 161 Ky. 419, 170 S.W. 973; Bentley v. Consolidation Coal Co., 209 Ky. 63, 272 S.W. 48, in which latter case many authorities are cited.

The language in this third paragraph creates a defeasible fee and the question at issue is, upon what event does the defeasance depend. It is insisted by appellants that the defeasance is the death at any time of testator's three children without surviving issue. While appellees'...