Ward v. Curry's Ex'r

• Decision Date: 05 May 1944
• Citation: 297 Ky. 420,180 S.W.2d 305
• Parties: WARD et al. v. CURRY'S EX'R et al.
• Court: Kentucky Court of Appeals

180 S.W.2d 305

297 Ky. 420

WARD et al. v. CURRY'S EX'R et al.

Court of Appeals of Kentucky

May 5, 1944

Appeal from Circuit Court, Mercer County; K. S. Alcorn, Judge.

Suit between Sarah H. Ward and others, and Zeletta G. Curry's executor (Kentucky Title Trust Company) and others, for construction of a will. From an adverse decree, Sarah H. Ward and others appeal, and the other parties file a cross-appeal.

Affirmed.

Errol W. Draffen and W. H. Phillips, both of Harrodsburg, for appellants.

C. E Rankin, of Harrodsburg, for appellees.

STANLEY Commissioner.

On February 7, 1936, the late Mrs. Zeletta G. Curry, an elderly widow of Harrodsburg, executed her will, prepared by a lawyer, clear and specific. Four days later she wrote a holographic codicil. She died May 26, 1943, leaving personal property, appraised at about $66,000, and real estate worth about $6,500. The codicil creates confusion.

The first three items in the will direct the payment of debts and funeral expenses, the erection of a monument and a bequest for the care of a cemetery lot in Cincinnati.

The fourth and fifth provisions of the will are as follows:

'Item IV. To my dear friend, Clara E. Chappelle, who has been more than a daughter to me, I give and devise the house and lot where I now reside in Harrodsburg, Kentucky, known as 'Diamond Point' for and during her natural life. At her death, said house and lot shall pass to and become the property of the United Presbyterian Church of Harrodsburg Kentucky, absolutely. I also give and bequeath the said Clara E. Chappelle for and during her natural life, all the household and kitchen furniture, fixtures, furnishings and decorations now in said home and used in connection with the occupancy of same as a home. On the death of the said Clara E. Chappelle said household and kitchen furniture, fixtures, furnishings and decorations shall pass to and become the property absolutely of the nieces of my husband, George Alfred Curry, who may be living at the time of the termination of this life estate, to be divided among them share and share alike.

'To the said Clara E. Chappelle, I also give the sum of Fifteen Thousand ($15,000.00) Dollars for and during her natural life of which sum Five Thousand ($5,000.00) Dollars shall be given her in Treasury Bonds and Ten Thousand ($10,000.00) Dollars in Great American Insurance Stock, she to use the income therefrom in such manner as she may desire. She shall have full power to sell any of said bonds or stock and from the proceeds of such sale expend for her personal use all or any portion of same as she may deem necessary and proper and she shall not be required to account for such portion as she may spend. At her death said sum of Fifteen Thousand ($15,000.00) Dollars or so much thereof as shall remain unexpended shall pass to and become the property, absolutely, of the nieces and nephews of my late husband, George Alfred Curry, who may be living at the date of the death of the said Clara E. Chappelle.

'I also give to the said Clara E. Chappelle, absolutely my automobile.

'Item V. All the rest and residue of my estate real, mixed and personal wheresoever situated of which I may die seized or possessed, I direct to be divided by my Executor into eight (8) equal portions. Two of these portions I give, devise and bequeath to William t. Curry, my husband's brother, for and during his natural life, and at his to William T. Curry, my husband's brother, share alike; two of these portions, I give, devise and bequeath to Robert P. Curry, my husband's brother, for and during his natural life, and at his death to his children, absolutely, share and share alike; four (4) of these portions, I give, devise and bequeath, absolutely, to the children of Mollie C. Dedman, who was my husband's sister, share and share alike.'

Other than the addition of a trust fund of $300 for the care of two lots in the Harrodsburg cemetery, identified as those of her husband and his brother, the codicil is as follows:

'I hereby cancel and revoke Item IV and further direct that it read as follows:

'Item IV. To my dear friend, Clara E. Chappelle, who has been more than a daughter to me I give and devise the house and lot where I now reside in Harrodsburg, Ky. known as 'Diamond Point' for and during her natural life. At her death, said house and lot shall pass to and become the property of the United Presbyterian Church of Harrodsburg, Ky. Said house and lot to be sold when suitable conditions exist and the proceeds to be re-invested and the income from same be given each year to National Missions of Presbyterian Church to be known as 'The Alfred and Zeletta Curry, Memorial.'

'I also give and bequeath the said Clara E. Chappelle for and during her natural life, all the household and kitchen furniture, fixtures, furnishings and decorations now in said house and used in connection with the occupancy of same as a home. She to have my personal property such as clothing, jewelry, etc.

'In Item V, second line, I hereby cancel and revoke the words 'personal estate."

The change made in the disposition of the real estate by the substituted Item IV is that instead of an absolute devise the remainder estate in her home given to her church was directed to be converted into cash and a trust established. The furnishings of the home were again given Clara E. Chappelle for life, but the bequest of the remainder in this property to the nieces of her husband and of the automobile to Miss Chappelle were omitted and no specific disposition made of it. In place of the part omitted there was added: 'She (Clara E. Chappelle) to have my personal property, such as clothing, jewelry, etc.' The bequest of $15,000 to Miss Chappelle for life and the balance in remainder to the nieces and nephews of testatrix's husband was left out.

The only change made in the residuary provision of the original will is to 'cancel and revoke the words 'personal estate' in the second line.' The two words do not appear together in the will.

The circuit court rendered an exhaustive opinion and upon it adjudged that the testatrix did not die intestate as to any of her property; and

'The codicil revoked the whole of Item IV of the original will and substituted therefor Item IV as set out in the codicil. None of the property passed under Item IV of the original will, but that portion of the property described in the original Item IV, which is also described in Item IV as set out in the codicil, did pass under the codicil. All of the property described in Item IV of the original will, and not described in Item IV as set out in the codicil, became a part of the residuary estate and passed, through Item V of the original will, to the brother and nieces and nephews of George Alfred Curry, as therein provided.

'The codicil revoked no part of Item V of the original will, except to the extent of the intimate personal effects, like clothing and jewelry, which belonged to the testatrix. These passed to Clara E. Chappelle under the codicil leaving all the remainder of her personal property to pass as part of the residuary estate through Item V, to the brother and nieces and nephews of George Alfred Curry. No part thereof passed to the heirs at law of the testatrix.'

Mrs. Curry's heirs-at-law appeal from the judgment. The executor, Miss Chappelle, and the nieces and nephews of the husband of the testatrix have been granted a cross appeal. It appears, however, that the cross appeal is merely protective and has been taken as a guard against some unforeseen construction of the will which might be adjudged adverse to the appellees, for they ask that the judgment be affirmed.

The testatrix bears testimony in her will to her devotion to Miss Chappelle, and her sense of obligation to her husband's people is revealed in the sixth item, saying that the distribution of her estate was being made 'with due regard to the fact that a portion of same was given me by my husband and a portion has always been my own individual property.' Mrs. Curry never had any children and was the only child of her parents. Her kinsmen were cousins in different degrees, children and grandchildren of brothers and sisters of her parents. It appears that she was not on intimate terms with any of them and that some of them were not located for the suit but were proceeded against as unknown heirs. Her relations will her husband's people, however, were intimate and cordial. In construing a will there is always present the presumption against partial intestacy. Of course, it is destroyed if a contrary intention appears in the will. The circumstances surrounding this testatrix and her own explanations make that presumption very strong indeed. Coupled with this is the existence of a residuary clause in her will. In such a case the courts should strive perhaps more diligently to work out a construction to accord with the presumption than where there is a different state of fact.

There is much force in the reasoning of the appellees that in looking over her will Mrs. Curry realized that her clothing and intimate personal effects would, quite inappropriately be sold or divided among her husband's elderly brothers and the children of his deceased sisters, so she changed her will to provide that her close friend and companion should have them. In order to make this certain she struck out the word 'personal' in the residuary clause; and in doing that she inadvertently omitted the bequest of $15,000 to Miss Chappelle. She may have believed that the part not changed would stand as written, for under the circumstances it does not seem reasonable that she would have again given her home and contents to her companion for life and then intentionally deprived her of the source of...