Watkins v. Bennett

• Decision Date: 31 May 1916
• Citation: 186 S.W. 182,170 Ky. 464
• Parties: WATKINS ET AL. v. BENNETT ET AL.
• Court: Kentucky Court of Appeals

186 S.W. 182

170 Ky. 464

WATKINS ET AL. v. BENNETT ET AL.

Court of Appeals of Kentucky.

May 31, 1916

Appeal from Circuit Court, Fayette County.

Action by Ellen Watkins and others against Sue Snedaker Bennett and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

J. N Elliott and George B. Kinkead, both of Lexington, for appellants.

Jos. S Botts, of Lexington, for appellees.

HURT J.

This appeal involves the proper construction of the last will and testament of Phillip Bennett, deceased. The testator, at the time of his death, was a citizen of Fayette county. The facts and circumstances, which the record discloses, as surrounding the testator, at the time of the execution of his will, are as follows:

The appellee Sue Snedaker Bennett was his second wife; his former wife was dead; there were not any children as the fruits of his first marriage; he had recently been married to appellee he and appellee were contemplating making a journey to Seattle, in the state of Washington; he then had two married sisters, one of whom lived in the province of Ontario, in the dominion of Canada, and the other resided in either the state of Massachusetts or New Hampshire; that he had eight nephews and nieces, who were the children of his deceased brother, Joseph Bennett; the nephews and nieces all resided in the province of Ontario, in the dominion of Canada, except one, Marie Lalonde, who resided in the state of New York. The record does not disclose the value of his estate at the time of the execution of the will, except that he had real estate of possibly the value of $5,500, but the value of any other property, or in what it consisted is not disclosed.

The will was executed on the 17th day of June, 1909, and testator died on the 30th day of July, 1914. He and appellee made the journey to Seattle, which they had in contemplation at the date of the execution of the will, but returned safely from the journey to Lexington, Ky. where they resided together until the death of testator. The testator preserved the will until his death. After the execution of the will, the testator became the owner of other real estate in addition to that owned by him at the execution of the will, and at his death the real estate owned by him was of the value of $23,000. Whether the real estate acquired by him after making the will was purchased by funds by him after that time or with funds which he had on hand at the date of the making of the will is not disclosed. At his death, in addition to his real estate, valued at $23,000, he was the owner of personal property of the value of about $2,500, and owed debts in the sum of between $5,000 and $6,000. In round numbers his estate, at his death, was of the value of about $20,000. There were not any children survived him as the fruits of his last marriage.

The will was as follows:

"June 17, 1909.

I, Phillip Bennett, of the city of Lexington, Fayette Co., state of Kentucky, being of sound mind and memory and knowing the uncertainty of life, do make, publish and declare this my last will and testimony.

I. I desire all my just debts paid.

II. My executrix, which I shall name hereafter, shall buy a lot in the Lexington cemetery and build a vault as durable as possible and pay for it out of my estate.

III. I bequeath to my wife, Sue Snedaker Bennett, all remaining of my estate to dispose of as she pleases for her own use. I request the court to ask of her no security or inventory of my property.

IV. In case of my wife's death, at the same time as mine, or during this trip, as we are going on a long journey, I further provide and appoint Miss Nannie W. Alexander as executrix of my estate, to have my vault built at the cemetery in Lexington, Ky. as above described, also, to leave $2,000.00 to keep this lot in repair, also keeping proper decorations on the ground, also move the remains of my first wife from the Joana Foley lot and inter in my lot. The inscription on the vault shall bear only the names of myself and wives.

V. I bequeath to the living children of my brother, Joseph Bennett, residing at Alexander, Canada, $4,000.00, and to each of my sisters $2,000.00.

VI. I give to George Watkins, colored, the house and lot on Robinson avenue, to do with as he pleases.

VII. I bequeath to Miss Nannie W. Alexander all my furniture, pictures and $3,000.00 in cash for settling up my estate. I request the court to ask of Miss Nannie W. Alexander, my executrix no security or inventory of my estate.

VIII. The remainder of my estate she shall dispose of as I have directed.

Signed by me, Phillip Bennett.

Witnessed by Daniel E. Lawell and H. W. Bain."

The controversy is between the appellee, upon one side, and the children of testator's deceased brother and sisters and George Watkins, the devisees named in the fifth and sixth clauses of the will, who are the appellants, upon the other side. The appellee contends that only the first, second, and third clauses of the will are effective upon the devolution of the estate; that the fourth, fifth, sixth, seventh, and eighth clauses of the will were effective only in the event of the contingency expressed in the fourth clause--that they only took effect upon the condition that the testator and appellee should die at the same time, or that the appellee should die upon the journey to Seattle, and the condition never having arisen upon which their validity was predicated, they are not living or valid provisions of the will. The appellants concede that the effectiveness of the fourth clause is dependent upon the condition that would arise if appellee should die at the same time as the testator or while upon the journey to Seattle, and that the contingency upon which it was conditioned never having arisen, it is not now effective, but they contend that the devises made in the fifth and sixth clauses were not made to depend upon the happening of any contingency, and hence are to be enforced as living provisions of the will. The court below held in accordance with the contentions of appellees, and hence this appeal.

The operation of the fourth clause of the will is expressly made to depend upon the happening of a contingency. By the first clause, the testator directs the payment of his debts. By the second clause he directs the purchase of a lot in the cemetery and the erection of a vault, to be paid for out of his estate. By the third clause he devises to appellee "all remaining of my estate, to dispose of as she pleases for her own use." By clause 3 he also requests the court to require no security of his wife, nor any inventory of his estate. Evidently, he contemplated that his wife should administer upon his estate. If he had stopped at this point, there could be no doubt that he had fully disposed of his entire estate and had died intestate as to no part of it. Having in contemplation, however, a long journey and the possibility of death coming to his wife or to his wife and himself by the dangers incident to travel, he by the fourth clause names Miss Nannie W. Alexander as his executrix, and gives directions to her as to the purchase of the cemetery lot and the erection of a vault, "as described above," directs her to set apart $2,000 of his estate to keep the lot in repair and proper decorations on the grounds, and directs the removal of the body of his first wife from the lot wherein it was then buried and its interment in the lot to be provided. He, however, makes the appointment of Miss Alexander as his executrix, and the directions to her embraced in the fourth clause of the will expressly depend upon the condition:

"In case of my wife's death at the same time as mine or during this trip, as we are going upon a long journey."

It will be observed that this immediately follows the clause devising to his wife his entire estate after the payment of his debts and providing the vault and the request that the court do not require any security of his wife, nor the exhibition of any inventory of his estate. It is clear that there would be no force or significance in the part of clause 3, in which the court is requested to require no security of his wife and to require of her no inventory of the estate, if it was his intention to appoint Miss Alexander the executrix of his will, regardless of whether his wife was then living or not living. Furthermore, the latter clause of clause 4 provides that only his name and those of his wives should be inscribed upon the vault. It could not be reasonably held that the testator intended that the name of his last wife should be inscribed upon the vault while she was yet living. Hence gathering the intention of the testator from the entire will, and giving to the language of it its ordinary and usual signification, it is very clear that the testator only intended that the appointment of Miss Alexander as executrix should depend upon the fact that the appellee, his wife, should not be living at the time of his death. The wife not having died at the same time of the death of the testator, nor upon the contemplated journey to Seattle, but having outlived the testator, the provisions of the fourth clause could never become operative. There can be no doubt that clauses 7 and 8 are also inoperative, and cannot be effective, since clause 7 devises to Miss Alexander the testator's furniture, pictures, and $3,000 in money, as the compensation for her services as executrix in administering upon the estate. Of course this devise could not be valid or effective, except in the event of her performing the duties of executrix, which could not occur unless the appellee died upon the journey to Seattle, or at some time when the testator should also die. The eighth clause also became inoperative, because the...