Rand v. Smith

• Decision Date: 02 May 1913
• Citation: 155 S.W. 1134,153 Ky. 516
• Parties: RAND et al. v. SMITH.
• Court: Kentucky Court of Appeals

155 S.W. 1134

153 Ky. 516

RAND et al. v. SMITH.

Court of Appeals of Kentucky.

May 2, 1913

Appeal from Circuit Court, Fayette County.

Suit by Fannie S. Rand and others against Warren Smith. From a judgment in part for plaintiffs, they appeal. Reversed, and remanded for further proceedings.

J. T Farmer, of Lexington, for appellants.

Warren Smith, for appellee.

HOBSON C.J.

Joseph Rand had two children, Amanda R. Smith and Fannie S. Rand who was unmarried and lived with him. His daughter, Mrs Smith, died leaving three infant children, whom she gave to her sister on her deathbed, and her sister took them to her home and raised them. In this condition of the family Joseph S. Rand made the following will and codicil:

"I, Joseph Rand, of Lexington, Ky. do make and publish this my last will and testament, hereby revoking all wills and codicils heretofore made by me.

"After the payment of my just debts and funeral expenses, I will and bequeath to my beloved daughter, Fannie S. Rand, all my real estate, for and during her natural life. At her death, the three houses and lots I own, situated on East Sixth street, Lexington, Ky. Nos. 154-158 and 162, and the three houses and lots I own situated on Rand avenue, in said city of Lexington, Ky. Nos. 155-159 and 163, to go to my grandchildren, in fee simple, the children of my daughter, Fannie S. Rand, should she have any, and the children of my deceased daughter, Amanda R. Smith. Should any of my grandchildren die before my daughter, Fannie S. Rand and leave a child or children, said child or children to have their parent's share.

"I will and bequeath to my beloved daughter, Fannie S. Rand all my personal estate, to dispose of as she may see fit, but whatever portion of said personal estate she may fail to dispose of by will or otherwise, during her life, shall be equally divided among my grandchildren, then living. And dispensing with any settlement in any Court, I hereby appoint my daughter, Fannie S. Rand, my executor, and request that no security be required from her, in that capacity.

"Witness my hand, this 27th day of January, 1899. Joseph Rand."

"This codicil written by my own hand, this 14th day of March, 1903. Should circumstances be such that my daughter Fannie S. Rand would not be able to support herself and my grandchildren on the income from the rents and keep the property in fair repair, she is authorized to sell, or otherwise raise money on the property, to take care of them. Signed, Joseph Rand."

The three grandchildren are now of age and two of them are married. The daughter Fannie S. Rand is 63 years of age and unmarried. She and two of the grandchildren brought this suit against the third, alleging the facts above stated, and asking that one of the lots named in the will be sold on the ground that this was necessary for her support and to pay certain assessments made upon the property by the city of Lexington for street improvements. In the second paragraph of the petition they prayed a construction of the will, charging that under it the testator intended to devise to each of the three grandchildren a fee simple estate in the real property, subject to the life estate of Miss Fannie S. Rand. The circuit court on final hearing directed a sale of the lot as prayed...