Todd's Guardian v. Todd's Adm'rs

• Decision Date: 09 October 1913
• Parties: TODD'S GUARDIAN et al. v. TODD'S ADM'RS et al.
• Court: Kentucky Court of Appeals

159 S.W. 702

155 Ky. 209

TODD'S GUARDIAN et al. v. TODD'S ADM'RS et al.

Court of Appeals of Kentucky.

October 9, 1913

Appeal from Circuit Court, Owen County.

Action between Fred Todd's Guardian and others and O. K Todd's Administrators and others. From the judgment, the guardian and others appeal. Reversed.

W. A Lee, of Owenton, for appellants.

Tomlin & Vest, of Walton, and Botts & Perry and Vallandingham &amp Alexander, all of Owenton, for appellees.

CARROLL J.

J. S Todd died in 1904 after having first made the following will, which was duly probated:

"I, J. S. Todd, being of sound mind and able bodied enough to write, do will and bequeath to my dearly beloved wife, Sophia J. Todd all of my personal property and household goods to have and to hold. The real estate I will jointly to my wife, S. J. Todd and my dearly beloved son O. K. Todd, after my just debts are paid. The farm to be run mutually. My wife, S. J. Todd, is to have a maintenance out of the proceeds of the farm, if it requires one half of it.

"Power is hereby given to my wife, S. J. Todd, and son, O. K. Todd, to sell or convey all or any part of the real estate if they mutually agree so to do, and the proceeds, if reinvested, to be subject to the conditions of the will.

"Should O. K. Todd die before my wife, S. J. Todd, the lands revert back to S. J. Todd as guardian for the bodily heirs of O. K. Todd.

"At the death of my wife, S. J. Todd, the property is to go to O. K. Todd.

"I hope this will and desire of mine will be carried out without them having to give bond.

"If S. J. Todd and O. K. Todd should both die before the bodily heirs of O. K. Todd become of age, the court is requested to appoint a guardian and require him to give a gilt edge bond.

"The only regret I have is that I have not ten times as much to leave as I have. It would be a feeble way to show the appreciation of their devoted love they have shown to and given me.

"I appoint S. J. Todd and O. K. Todd as the executor of my will."

In 1912 O. K. Todd died intestate, leaving as his only heirs at law his two children, Fred and Mary Todd. The question for decision is, Did Mrs. S. J. Todd and O. K. Todd take the fee or only a life estate, with remainder to the children of O. K. Todd, in the estate devised to them by the will? The lower court held that they took the fee, and the children of O. K. Todd appeal.

The will, which was evidently written by the testator himself leaves in some doubt his intention as to the character of the estate he desired his wife and son to take; but, after carefully considering the entire instrument, we have reached the conclusion that his purpose, although rather awkwardly expressed, was to give his wife and son each a life estate and not the fee. It is very true that the estate is devised jointly to the wife and son, with power in them to sell and convey all or any part of it, and this investment of the title, together with the power of disposition, are the features of the will that influenced the lower court to rule that they took the fee; the ruling being based on the case of Clay v. Chenault, 108 Ky. 77, 55 S.W. 729, 21 Ky. Law Rep. 1485, which has been many times followed. In that case it was said: "It seems to us that the decided weight of authority, if, indeed, there be any to the contrary, is to the effect that a will or deed giving to the vendee or devisee full power to sell and convey passes the absolute fee, and that any (subsequent, contrary) provision or devise is absolutely void, for the reason that it is inconsistent with or repugnant to the fee, and it is wholly immaterial whether the power to sell or dispose of the property shall have been exercised...