O'Rear v. Bogie

• Decision Date: 04 March 1914
• Parties: O'REAR v. BOGIE.
• Court: Kentucky Court of Appeals

163 S.W. 1107

157 Ky. 666

O'REAR v. BOGIE.

Court of Appeals of Kentucky.

March 4, 1914

Appeal from Circuit Court, Montgomery County.

Action by Ed. C. O'Rear against Anderson C. Bogie. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

Ed C O'Rear, of Frankfort, pro se.

John G Winn, of Mt. Sterling, for appellee.

HOBSON C.J.

Joseph C. O'Rear, by the first clause of his will made in 1898 directed that the funeral expenses, just debts, and cost of administration should be first paid out of his estate. The second and third clauses are as follows:

"(2) I bequeath to my beloved and faithful wife, Sarah E. O'Rear, all my household furniture, belongings thereto, including family portraits and apparel.

"(3) I furthermore bequeath to my said wife subject to the specific bequests of this will, all of the residue of my personal property, during her natural life. This property she is given the right to use, manage and dispose of as her wants or needs may require, and to be converted and invested as may be best suited to her desire and welfare, and of these she is to judge."

By the fourth, fifth, sixth, seventh, and eighth clauses he made specific devises to different persons. The ninth, tenth, eleventh and twelfth clauses of his will are as follows:

"(9) All of my real estate, being the home farm on Hinkston creek in Montgomery county, Kentucky, where we now live as well as any other real estate that I may at my death own, I give and devise unto my said wife Sarah E. O'Rear for and during her natural life. If it should become necessary to sell any of it, to carry into effect the foregoing provisions of this will, she is to make the sale and conveyance of such portion as may be necessary for that purpose.

"(10) If at my death my said wife be not then living, I give and devise to my brother, John W. O'Rear, the same property herein given and devised to my said wife, to be held and used for and during his natural life, and under the same limitations and conditions that she would have held same.

"(11) If my said brother, John W. O'Rear, and my said wife should both survive me and my said brother John W. O'Rear be alive at the death of my said wife, then I give and devise to my said brother, the same property mentioned in the last above item (item 10) of this will, to have and use and enjoy during his natural life.

"(12) Upon the death of both my said brother and my wife, or in the event they both should be dead at my death, I give bequeath and devise the remainder of my property herein given them and not otherwise disposed of by this will, to my kindred as follows: To the descendants that are then living of my brothers and sisters as if I had died intestate. All my brothers and sisters (save John W. O'Rear) being now dead, the said property is directed to go to the children then living of my said brothers and sisters, and to the then living descendants of such of them as are then dead. The said descendants to then take what their respective ancestors would have taken if they had then been alive. *** When it comes to a division of the residue of my estate after the deaths of my said wife and brother, I empower the executor hereof, who may be living or if none living, then the administrator appointed by the court, to sell and convey the said land herein devised and to apportion the proceeds thereof among those entitled thereto, provided said representative shall deem it best to do so, and a majority of those entitled to receive same and who are of age to contract, and free from legal disability, shall assent thereto in writing."

The testator's brother, John W. O'Rear, died; his widow renounced the will. Dower was assigned her in the land. After this she sold and conveyed her dower to the appellee, Ed. C. O'Rear, and those who were the heirs at law of the testator, and who would have taken his estate had he died intestate, also conveyed the property to him. He sold the land to Anderson Bogie. The widow is still living, and Bogie, being doubtful whether the title of Ed. C. O'Rear was good, declined to accept the deed. Thereupon this suit was brought. The circuit court held the title of Ed C. O'Rear not good. He appeals.

It is well settled that if property be devised to A. for life, with remainder to B., and the remainder to B. is vested, if the life estate is terminated in any way as by the renunciation of the will by the widow, the remainder is precipitated and takes effect in possession then. Curling's Adm'r v. Curling's Heirs, 8 Dana, 38, 33, Am. Dec. 475; Wood's Adm'r v. Wood's Devisees, 1 Metc. 512; Peynado v. Peynado, 82 Ky. 5. But it is insisted that this rule cannot be applied where the remainder is contingent, and that as the devise over is to the children, then living, of the testator's brothers and sisters, and to the then living descendants of such of them as are then dead, the descendants to take what their respective ancestors would...