Urey's Adm'r v. Urey's Ex'x

• Decision Date: 01 December 1887
• Citation: 86 Ky. 354,5 S.W. 859
• Parties: UREY'S ADM'R and others v. UREY'S EX'X and others.
• Court: Kentucky Court of Appeals

5 S.W. 859

86 Ky. 354

UREY'S ADM'R and others v. UREY'S EX'X and others.

Court of Appeals of Kentucky.

December 1, 1887

Appeal from circuit court, Caldwell county.

Wm Marble and C. T. Allen, for appellants.

F. W Darby, for appellees.

PRYOR C.J.

F. W Urey, born in Ireland, but a naturalized citizen of the United States, died in the town of Princeton, where he had resided for many years, leaving a last will and testament that was admitted to probate in the Caldwell county court, his wife, Pencia Urey, qualifying as executrix. His death took place in July, 1864, and his widow, the executrix, took charge of his estate, and now holds and claims it as her own under certain provisions of the testator's will. The testator left no children surviving him, but brothers and sisters and their decendants, his father and mother having died long prior to his death. He was the owner at his death of considerable estate, consisting of land, bank stock, money, choses in action, etc.,--all of which has been in the possession of his widow since the probate of his will in August, 1865. The judgment of the county court declaring the paper in question to be the last will of Urey was never appealed from, modified, or reversed. This will consists of an original paper dated the twenty-ninth of March, 1859, and a codicil attached thereto on the same paper, dated April 10, 1860. The will and codicil seem to have been executed in the manner prescribed by the statute. In the year 1884 the widow sold certain parcels of the land devised to her, as she claims, by her husband; and, the purchasers questioning her title, this action in equity was instituted in the court below, seeking a construction of the will, to which the heirs at law of the testator as well as the devisees were made defendants.

The will is as follows:

"Knowing the uncertainty of life and certainty of death, and being about to take a trip east, I think it proper and right to dispose of what property a kind Providence hath blessed me with. To this end I make this my last will and testament, to-wit:

"(1) I will and bequeath to my former negro woman named Phereby, now in Liberia, and her children, the dividend on my bank stock in the Farmers' Bank of Kentucky during the existence of said bank; and when the bank winds up, then my stock in said bank is to go to the said Phereby and her children. But, if my executors think best, they may reinvest it in some good bank stock, and the dividend therefrom to go to the said Phereby and her children forever; the dividend to be sent to Rev. Wm. McLain, Washington city, to be sent by him to them if they remain in Liberia; but should they return to the United States, then my executors are to send direct to them, wherever they may reside.

"(2) I will and positively direct that all my negroes at my wife's death, young and old, be free, and sent to Liberia, and that they shall be well clothed, and a sufficient quantity of clothing in addition be given them to last them two years after they get there, and that expenses required to send them to Liberia, and clothing, etc., shall be paid out of my estate, and I also will that each negro so sent shall have one hundred dollars each to give them a start when they get there.

"(3) It is my will that each of the negroes I have already sent to Liberia shall have one hundred dollars. This money is to be also sent to the Rev. Wm. McLain, Washington city, to be sent to them by him.

"(4) I will and bequeath to Joseph Henry the land I intended for Jane Kirk, but as she is now dead I give it to Joseph Henry, and in lieu thereof I give to David Kirk, Alexander Kirk, and Nancy Kirk five hundred dollars.

"(5) I will and bequeath to the session of the Presbyterian Church in Princeton five hundred dollars, the interest of which is to go yearly forever towards keeping the church in repair, the principal not to be touched.

"(6) I will and bequeath to my beloved pastor, the Rev. James Hawthorne, five hundred dollars.

"(7) I will and bequeath to Joseph Henry, in addition to the land, one thousand dollars.

"(8) In case myself and wife should not live to return, I will that all mine and my wife's clothing and silverware to be sent to Phereby and her children, wherever they may be, either in Liberia or in the United States; also all the bedding.

"(9) I will and bequeath to Francis Harris and her children my town property that I now live on.

"(10) I will that Neicy Perry shall have five hundred dollars, and that all the furniture and carpets be divided between Mrs. Mary Bond, Francis Harris, and Neicy Perry; Mrs. Bond to make the division.

"(11) I will and bequeath to Jane Wallace, in Ohio, five hundred dollars.

"(12) It is my will that this will is not to take effect until my wife's death. But in case my wife wishes to destroy this will she is at liberty to do so, and is at perfect liberty to dispose of any of my property as she pleases, while she lives, except all my negroes are to be free and disposed of as stated above. I clearly will and declare that my wife shall have all my property, to do with as she pleases, as this is only intended in case we should die while gone.

" Lastly. I appoint my beloved wife my sole executrix, and is to give no security in court; and, in case neither myself nor wife should not live to return, in that event I appoint Doct. P. B. McGoodwin and Rev. James Hawthorne my executors, and positively forbid any person from preventing my negroes being free and sent to Liberia.

"Given under my hand and seal this the seventh day of March, 1859, the word 'have' interlined before signing. F. W. UREY. [Seal.]

"Witnesses: T. D. PINNER.

"A. C. MAYES.

"I make addition to the within will dated the seventh of March, 1859. I further will to my four nieces in Philadelphia, namely, Margaret Totton, Sally Bell, Salina Bell, and Perncey McElhenny, five hundred dollars each. If Mr. McLain should die, or go out of office, then the ------ to be sent to Phereby and her children to be sent to the secretary of the colonization society, to be sent to them by him. I hereby revoke the five hundred dollars given to Pernecy Perry in the 10th clause in the within will. I give to Mary Garrett the note I hold on her father. I hereby will and declare that James Kevil, nor his family, is to have one cent of my property in any way, as they have already got as much as I intended them to have.

"This codicil I declare to be part and parcel of the within will. Given under my hand and seal this tenth day of April, 1860.

"Witnesses: J. R. HARP. F. W. UREY. [Seal.]

"WILL H. MILLER."

The heirs at law of the testator maintain that, as the effect or validity of the instrument as a will is made to depend on the contingency of both the testator and his wife dying while on their eastern trip, and both having returned, the writing became a nullity, and the whole estate descended to them as his next of kin, subject to the widow's dower and distributive share of the personalty. The legatees insist that the paper is the last will of the decedent, and the widow took either a life-estate, or became entitled to the residuum of the estate after the various devises or legacies have been satisfied. The widow claims the entire estate under the twelfth clause of the will.

Such are the different constructions placed on the will of the testator by the parties in interest; and if, as contended the original will was based on a contingency that never happened, and cannot be revived, or made effectual by a codicil attached thereto, then the heirs at law take the property subject to the rights of the widow as dowress and distributee. The probate of the will disposes of the question as to its validity, and it must be construed as the...