Stockwell's Adm'r v. Bowman

• Decision Date: 14 March 1902
• Citation: 67 S.W. 379
• Parties: STOCKWELL'S ADM'R et al. v. BOWMAN et al. [1]
• Court: Kentucky Court of Appeals

67 S.W. 379

STOCKWELL'S ADM'R et al. v. BOWMAN et al. ^[1]

Court of Appeals of Kentucky.

March 14, 1902

Appeal from circuit court, Fayette county.

"Not to be officially reported."

Action by Henry S. Reed, as executor of the wills of Martha Reed and Martha R. Stockwell, and as one of the heirs of Martha Reed against Elizabeth R. Bowman and others, for a construction of the will of Martha Reed, and for direction as to the executor's duties. Judgment construing will, and Henry S Reed, as executor of Martha Stockwell, and others, appeal. Affirmed.

Falconer & Falconer, for appellants.

J. M Tanner, for appellee Reed. C. C. Calhoun and Breckinridge &amp Shelby, for appellee Payne.

DU RELLE, J.

Mrs Martha Reed, by her last will, provided for the payment of her debts, for the distribution of certain furniture and portraits, gave a small legacy to a charitable use, and in the fifth clause provided that the residue of her estate should be converted into money, except her bank stocks and other securities, and that her estate should be equally divided, in six parts, between her son, her three married daughters, her unmarried daughter, and two grandsons, who were, together, to take the share of their father. By the sixth clause her son's share was given to him absolutely and in money. The residue of the estate not already in stocks was to be invested in bank stocks and distributed equally among the other devisees,--"the shares which in this distribution go to my married daughters, Mrs. Bowman, Mrs. Simpson, and Mrs. Stockwell, to be assigned to and held by them for life, as separate and free from the control of their said husbands, during their lives, respectively; and at their deaths their said shares to be equally divided between the children of the one so dying and the descendants of any of their said children that may be dead, such descendants together taking the share of their parent." Mrs. Stockwell's share was subsequently invested in the 32 acres of land in controversy. She had one child, John Stockwell, who died before her, after arriving at age; and by his will he devised to her all his property of every kind. Mrs. Stockwell subsequently died, leaving a will by which she attempted to dispose of the land in controversy. The object of this proceeding is to ascertain whether the land belongs to the beneficiaries under Mrs. Stockwell's will, or passes under the residuary clause of Mrs. Reed's will, or is distributed under the statute to the heirs of Mrs. Reed.

For the appellant, as executor of Mrs. Stockwell, it is contended that, under the sixth clause of Mrs. Reed's will, John Stockwell took a vested remainder, as the child of Mrs. Stockwell, in the share which came to her; that he had, therefore, an interest capable of being devised; and that by his will it passed to his mother, and is to be treated as a part of her estate. Especial stress is laid upon the fact that one of the recognized tests of a vested, as distinguished from a contingent, remainder, is the present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines. Upon the other hand, it is urged by the heirs of Mrs. Reed that this test, which is the one formulated by Mr. Fearne, is always limited to the case of a remainder-man who is in esse and ascertained, and has no application in a case where the event which renders the possession vacant resolves the contingency as to the person who is to take. 1 Fearne, Rem. 216, 217; Williamson v. Williamson, 18 B. Mon. 368, 369; White's Trustee v. White, 86 Ky. 602, 7 S.W. 26; Johnson v. Jacob, 11 Bush, 658.

But treating the...