Thornhill Baptist Church v. Smither

• Decision Date: 10 December 1954
• Citation: Thornhill Baptist Church v. Smither, 273 S.W.2d 560 (Ky. 1954)
• Parties: THORNHILL BAPTIST CHURCH et al., Appellants, v. A. C. SMITHER et al., Appellees.
• Court: Supreme Court of Kentucky

Page 560

273 S.W.2d 560

THORNHILL BAPTIST CHURCH et al., Appellants, v. A. C. SMITHER et al., Appellees.

Court of Appeals of Kentucky.

Dec. 10, 1954.

Marion Rider, Frankfort, for appellants.

Clyde E. Reed, Frankfort, for appellees.

MONTGOMERY, Justice.

This is an appeal from a judgment of the Franklin Circuit Court construing the will of Urban V. Sargent, deceased, adjudging appellees to be the owners in fee simple of lots Nos. 121 and 122 in Thornhill Park Subdivision, and decreeing specific performance by appellants of a contract for the purchase of said lots. The appellants' grounds for reversal are: (1) the description of the property devised is definite, and the courts must accept and give effect to the language used; (2) the language used contains no latent ambiguity, and extrinsic evidence was not admissible to determine the intent of the testator; and (3) any ambiguity in the language used was patent on the face of the instrument.

Urban V. Sargent was married and had two children, a son, Harry Church Sargent, and a daughter, Mrs. Emma Sargent Smither. Shortly after World War I, his wife died and he never remarried. Harry Church Sargent predeceased his father, being then unmarried and without issue. On February 24, 1926, Urban purchased two lots, Nos. 121 and 122, in the Thornhill Park Subdivision and received a deed therefor from Henry H. Roberts and his wife, Anna K. Roberts. The deed is recorded in deed book 74, page 418, Franklin County court clerk's office. Urban V. Sargent died testate March 18, 1941. His will, dated March 20, 1929, after having been duly proven, was admitted to probate by the Franklin County court by an order entered April 7, 1941. In the second clause of his will, Mr. Sargent devised his two lots to his daughter, Emma Sargent Smither, which reads as follows:

'I give, bequeath and devise to my daughter, Mrs. Emma Smither, in fee, my house and the personal property contained therein, and lots Nos. 1 and 2 in Thorn Hill Park on Owenton Pike and Dailey Ave.'

On November 27, 1943, Emma Sargent Smither died intestate, leaving surviving her as her next of kin and heirs-at-law her husband, A. C. Smither, Sr., who has since remarried, his present wife being Eva Mae Smither; her children, A. C. Smither, Jr., Frances Smither Hockensmith, Lucy Jane Smither Thomas, Zach Smither, U. V. Smither, Robert Smither, all of whom are adults more than twenty-one years of age, and her son, Albert Smither, and daughter, Ann Taylor Smither, infants more than fourteen years of age.

On February 24, 1954, A. C. Smither, Sr., individually and as guardian of Albert Smither and Ann Taylor Smither, together with the other children, entered into a written contract with the Thornhill Baptist Church and its trustees to sell and convey to the Thornhill Baptist Church lots Nos 121 and 122 for the consideration of $18,000.

The Thornhill Baptist Church now contends that the sellers cannot convey good title because the will of Urban V. Sargent bequeathed and devised lots Nos. 1 and 2 on Owenton Pike and Dailey Avenue, when in fact lots Nos. 1 and 2 are on Noel Avenue and Grand Avenue of the Thornhill Park Subdivision and were never owned at any time by Urban V. Sargent. Lots Nos. 121 and 122 are located on Owenton Pike and Dailey Avenue.

A. C. Smither, Sr., and all the heirs-at-law of Emma Sargent Smither instituted this action against the Thornhill Baptist Church and its trustees, and joining as party defendants Albert Smither and Ann Taylor Smither, infants more than fourteen years of age, for the construction of Urban V. Sargent's will and specific performance of the contract.

The question for our determination is whether under the will of Urban V. Sargent, Emma Sargent Smither took fee simple title to lots Nos. 121 and 122 under a devise to her of lots Nos. 1 and 2 on Owenton Pike and Dailey Avenue.

In grounds 1, 2, and 3 for reversal, appellants contend that in construing a will the courts must give a fair interpretation of the words and language used, and the courts cannot resort to extrinsic evidence to eliminate the ambiguity that has arisen. This contention is incorrect if the ambiguity is latent rather than patent.

The question now arises: Is there a latent...