Thomas' Ex'r v. Marksbury

• Decision Date: 06 June 1933
• Citation: 249 Ky. 629,61 S.W.2d 282
• Parties: THOMAS' EX'R et al. v. MARKSBURY et al.
• Court: Kentucky Court of Appeals

61 S.W.2d 282

249 Ky. 629

THOMAS' EX'R et al. v. MARKSBURY et al.

Court of Appeals of Kentucky

June 6, 1933

Appeal from Circuit Court, Shelby County.

Suit by A. R. Thomas, as executor of John C. Thomas, deceased, and others, against Mary Lizzie Marksbury and others. From the judgment, the executor appeals.

Affirmed.

O. T Kaltenbacher and C. G. Barrickman, both of Shelbyville, for appellants.

E. H Davis, of Shelbyville, for appellees.

CLAY Justice.

John C Thomas, a resident of Shelby county, died testate on February 28, 1931, possessed of an estate worth about $40,000, and survived by his widow, Mattie Thomas, two daughters, Mary Lizzie Marksbury and Cleo Brown, and one son, A. R. Thomas. His will reads as follows:

"Pleasureville Sept the 25 1927

"I wille to my wife Mattie Thomas one house and lot 3 acres mor les in South Pleasureville and all of the household goods and Nine thousand dollars in cash to do as she pleases with--after bearal epences is paid. the remainder to be ecully devided between my three children; and the farm at Christiansburg sell and devid the money and same and the note that I hold agance I. G. Marksbury if not paid or part paid take the remainder out of Lizzie's part. her hold the note agince him and a home bought for Lizzie Marksbury and deeded too her her life time and at her death to go too her bodly heirs.

I want A. R. Thomas to be Executor without bound

"John C. Thomas

"Stock and farm empliments sole (Written on margin.)"

In due time A. R. Thomas qualified as his father's executor and brought this suit against the devisees under the will and the three living children of Mary Lizzie Marksbury for a construction of the will. Mrs. Marksbury pleaded in substance that her share of the estate, after deducting her husband's note, was approximately $8,000; that of this amount her father intended that only about $3,000 should be invested in the home, and that she should have an absolute estate in remainder. There was evidence that the other children had homes, and that the testator frequently declared in their presence that he wanted $3,000 or $4,000 invested in a home for Mrs. Marksbury, and the balance, after deducting her husband's note, paid to her, and such was the judgment of the chancellor. The executor appeals.

Courts will always construe a will so as to harmonize its different provisions and give effect to each, if possible. To this end they will not disturb the first provision further than is absolutely necessary to give effect to the second. It is only where the provisions are irreconcilable that the latter will be preferred and prevail over...