Tichenor v. Brewer's Ex'r

• Decision Date: 30 November 1895
• Citation: 98 Ky. 349,33 S.W. 86
• Parties: TICHENOR et al. v. BREWER'S EX'R.
• Court: Kentucky Court of Appeals

33 S.W. 86

98 Ky. 349

TICHENOR et al. v. BREWER'S EX'R.

Court of Appeals of Kentucky.

November 30, 1895

Appeal from circuit court, Nelson county.

"To be officially reported."

Action by Bettie Tichenor and her two infant children against Lucy Brewer's executor for property devised by defendant's testator in trust for plaintiffs' son and half-brother respectively, during his life, with remainder "to his descendants, if any, in fee," otherwise to a charitable institution. From a judgment against them, plaintiffs appeal. Affirmed.

E. E McKay, for appellants.

P. B. &amp Upton W. Muir, for appellee.

GRACE J.

The questions presented by this appeal arise upon this clause of the will of Mrs. Lucy Brewer, who in 1888 died testate domiciled in Nelson county, Ky. where her will was duly probated in 1889, after her death: "All the remainder of my estate of every kind whatsoever I give to William Johnson in trust, and the income or profits of the same, or so much thereof as he may think proper, to be applied to the support and maintenance of Frederick Brewer, and any family he may have, during his natural life, and at his death then to his descendants, if any, in fee, according to the laws of descent and distribution; but if he should die without descendants living at the time of his death, then the property mentioned in this clause is to go to the Roman Catholic bishop of the city of Louisville, to be by him used for the benefit of the Roman Catholic charitable institutions in his diocese. Said trustee may permit said Frederick to have possession of all said property, but subject to the control of said trustee for the purpose aforesaid." It is alleged in the petition that plaintiff Bettie Tichenor was a niece of Lucy Brewer, and that she is the mother of Frederick Brewer, the devisee mentioned; that the two infant plaintiffs are the half-brother and half-sister of Frederick Brewer, being born of the same mother by her second marriage; that said Frederick Brewer is dead, having never been married, and, of course, leaving no descendants (no issue of his body) that could lawfully take under the will, after his death. But plaintiffs allege that she (being the mother of Frederick Brewer) and her two infant children born to her by a subsequent marriage, being the brother and sister of the half blood, are entitled to inherit this property under the law of descent and distribution, and that this property passed to them as the descendants and heirs at law of said Frederick Brewer, deceased. The property claimed is a small personalty, and a tract of land of 184 acres in Nelson county. Plaintiffs confuse their claim as descendants and heirs at law. While it may be that the same persons are often both the descendants and heirs at law of an ancestor, yet it by no means follows that the terms "descendants" and "heirs at law" mean always one and the same person. In this case, where the whole estate of Lucy Brewer passed by her last will and testament, of course nothing, strictly speaking, could have descended in any event to any heir at law of her. And as to Frederick Brewer, he had only a life estate in any event, so that no part of this property devised to him for life by Mrs. Lucy Brewer could pass from him under the laws of descent to his heirs at law. His estate in this land being for life only, there was no inheritable estate in him. We must therefore look to the will of the testatrix, Mrs. Brewer, to see what distribution she made of the remainder interest in this part of her estate. By that will, as quoted, we see that this property is given, through a...