Weber v. Schroeder
| Decision Date | 22 February 1927 |
| Citation | 291 S.W. 739,218 Ky. 442 |
| Parties | WEBER ET AL. v. SCHROEDER. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Warren County.
Suit by Mrs. Emma H. Schroeder against John D. Weber and others. From the judgment, defendants appeal, and plaintiff cross-appeals. Reversed on the original appeal, and affirmed on cross-appeal, and cause remanded.
O. P Roper, of Bowling Green, and Robert Hubbard, of Louisville for appellants.
G. D Milliken and W. B. Gaines, both of Bowling Green, for appellee.
This is a suit by Mrs. Emma H. Schroeder against the contingent remaindermen named in the will of her mother, Mrs. Olivia Rauscher, to construe the latter's will, and also to construe two deeds executed to testatrix by plaintiff's deceased father, Dominick Rauscher. The lower court held that, by the provisions of her mother's will, the plaintiff took a life estate only in the devised estate, and that the fee in remainder vested in testatrix's brothers and sisters and their descendants. It also held that under the deeds mentioned plaintiff's father conveyed his wife a life estate only in the property therein described; that this property did not pass under the will; and that, as he died intestate, plaintiff inherited the fee in it. The defendants are satisfied with the construction of the will but appeal from so much of the judgment as holds that, under the deeds referred to, Olivia Rauscher took a life estate only in the property conveyed, and insist that she was given the fee by those deeds; that under the terms of her will Emma took a life estate therein and the defendants a vested remainder. The plaintiff, Emma Schroeder, has taken a cross-appeal from so much of the judgment as construes the will to give her a life estate only in the property devised; but insists that the other provisions of the judgment should be upheld.
Dominick and Olivia Rauscher began their married life with small means, but, by dint of industry, frugality, and thrift, acquired considerable estate. The first deed mentioned was executed on the 2d day of February, 1874, and the second one on the 31st of January, 1882. The husband also conveyed other property to his wife without restriction, and died intestate, leaving considerable estate. They had one child, Emma, the plaintiff in this action. She has been married twice. She had no children by the second marriage, but to the first union one child was born, Ruth Webb, later Ruth Mentelone. Ruth was living at the grandmother's death, but has since died, leaving no issue.
The will of Mrs. Rauscher was executed in July 1895, and probated in March 1913, and will be considered first. After the usual formalities and provisions for payment of debts, it provides:
Obviously Mrs. Schroeder was given a life estate only by the will. But she insists on the cross-appeal that the contingency in the will upon which the estate vested referred to the first devisee dying without issue during the life time of the testatrix, and that at her death the remainder vested in her daughter Ruth; that upon Ruth's death she inherited her estate, and thus became the owner in fee. She cites a number of cases where a direct devise was made with a limitation over, in the event of the devisee "dying childless," or of the happening of some other contingency, nothing else appearing in the will to indicate when the limitation is to take effect, and in which it was held the words used referred to the happening of the contingency before the death of the testator, and, if it did not occur until after his death, the first taker acquired a fee. A number of our cases hold directly to the contrary, and in Harvey v. Bell, 118 Ky. 512, 81 S.W. 671, the cases both pro and con were collected, and the rule laid down that as to real estate at least the words quoted and similar phrases referred to the happening of the contingency "at any time," and that in such instances the first taker took a defeasible fee, subject to being defeated at any time the contingency should happen. Subsequently the same confusion arose again, and in the late case of Atkinson v. Kern, Trustee, 210 Ky. 824, 276 S.W. 977 upon an elaborate review of all the authorities, the court finally adopted the rule as laid down in Harvey v. Bell, supra, and overruled the cases holding to the contrary, and this rule may now be regarded as firmly established in this court. However, this will falls within a different classification from the devises discussed in the above cases. Here the gift to the children is preceded by a life estate in their mother, and subject to be defeated if she should "die not leaving any bodily heirs." In such cases the rule is uniform that the words "die not leaving any bodily heirs" and similar words in other cases refer to the death of the remainderman before the termination of the particular estate. See Harvey v. Bell, supra. The rule was thus stated in Birney v. Richardson, 5 Dana, 424:
"When * * * the gift is not immediate but in remainder, and there is a bequest over on the legatee's death alone, or death without issue, * * * in such a case, the simple unexplained words 'dying without issue,' will, * * * be construed as meaning the death of the legatee after that of the testator."
The exact question was decided in Ph nix & Third National Bank v. Cassell, 189 Ky. 341, 224 S.W. 1073; the will in that case reading:
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