State Bank of Eau Gallie v. Rose's Admr.

• Decision Date: 29 April 1927
• Citation: 219 Ky. 562
• Parties: State Bank of Eau Gallie v. Rose's Administrator, et al.
• Court: United States State Supreme Court — District of Kentucky

219 Ky. 562

State Bank of Eau Gallie v. Rose's Administrator, et al.

Court of Appeals of Kentucky.

Decided April 29, 1927.

1. Wills. — The intention of the testator, when ascertainable from the language used, controls, regardless of collateral and subsidiary rules which may be employed in arriving at an obscurely expressed intention.

2. Wills. — Under a will devising land to widow for life and providing that on her death the land should be sold, and the proceeds divided among six named children, but that, if either of them should be dead, the share of such one should go to his or her heirs, the death of a child before the life tenant died defeated his interest, and his heirs took his interest directly.

3. Wills. — In will providing that on the death of the life tenant land should be sold, and the proceeds divided among named children, "and if either of them be dead the share of such one to go to his or her heirs," the words "his or her heirs" cannot be read as words of limitation.

4. Wills. — In will providing that on the death of life tenant land should be sold and proceeds divided among named children, "and if either of them be dead the share of such one to go to his or her heirs," the words "if either of them be dead" refer to the time of the death of the life tenant.

Appeal from Garrard Circuit Court.

ROBINSON & KAUFFMAN for appellant.

LEWIS L. WALKER for appellees.

OPINION OF THE COURT BY JUDGE DIETZMAN.

Affirming.

This case involves the construction of the will of G. B. Rose. By clause III of that will, the testator devised to his wife, Jane M. Rose, a farm of 100 acres at Camp Dick Robinson in Garrard county, Ky., for her life. Clause V of that will reads:

"After the death of my wife, I direct that said 100 acres of land at Camp Dick Robinson in Garrard county, Kentucky, mentioned above, be sold as soon as possible by my executor at public auction to the highest bidder and said executor to make deed to the purchaser, and the proceeds of said sale of land I give to my said six children, to wit, Robert L. Rose, William C. Rose, Mrs. Etta Belle Bowling, Bacon C. Rose, Grover Cleveland Rose, Samuel J. Rose, share and share alike, and if either of them be dead the share of such one to go to his or her heirs."

G.B. Rose died in March, 1919. His widow, Jane M. Rose, died in December, 1925. Their son, Grover Cleveland Rose, died in July, 1923. The question presented by this record is what interest did Grover Cleveland Rose take in the 100-acre farm above mentioned. The appellant contends that he took a fee-simple interest in an undivided sixth of the farm subject to his mother's life estate. The appellees contend such interest as he took in the land was defeated by his death prior to that of his mother; his heirs taking that interest by reason of such defeasance. The lower court agreed with the appellees and entered judgment accordingly. The appellant appeals.

The fundamental rule for the construction of a will is to ascertain the intention of the testator and in arriving at that intention the courts should look to the language he employed. If in so doing his intention can be ascertained, that intention controls, regardless of collateral and subsidiary rules which may be employed in arriving at the intention when it is obscure. Jones v. Jones' Ex'rs, 198 Ky. 756, 250 S.W. 92. The will before us says that, on the death of the life tenant, the farm is to be sold and the proceeds divided among six named children, but that if...