Wheeler's H'Rs. v. Dunlap, &C.

• Decision Date: 10 October 1852
• Court: Kentucky Court of Appeals
• Parties: Wheeler's heirs <I>vs.</I> Dunlap, &c.

Page 291

52 Ky. 291

Wheeler's heirs vs. Dunlap, &c.

Court of Appeals of Kentucky.

October 10, 1852.

ERROR TO FAYETTE CIRCUIT.

Judge SIMPSON delivered the opinion of the court.

The questions involved in this case depend upon the construction of the will of Eve Dunlap, deceased.

After the usual preamble, the testatrix directs her just debts and funeral expenses to be paid, and then states — "It is my will, that in consideration of the nu- "merous services and dutiful attentions of my daugh- "ter Catharine Martin, to me, that she shall have the "following property, to-wit, two beds and bedsteads," &c., enumerating various articles of personal property. She then makes a devise in the following language: "It is my will that my son, W. Jefferson, shall "have my two boys Thornton and Arche, and that he "shall pay over to George W. Dunlap and Catharine "Martin the amount of their value over and above "his proportionable part with my two children above "named, having due reference to an equal division "between my three children of that portion of my "property remaining, which I wish divided equally "between William Jefferson and George W. Dunlap "and Catharine Martin."

In August, 1819, a tract of land, containing seventy-four acres, was conveyed to William Dunlap and Eve his wife. William Dunlap, the husband, died a few years after the date of the deed, and Eve Dunlap the testatrix, to whom the right to the land survived upon the death of her husband, continued to reside upon it until her death, which occurred in 1842. Her will bears date in 1841, at which time, according to the testimony in the cause, the tract of land referred to was of the value of four thousand dollars, and the two slaves devised to William Jefferson, who were both small children, were of the value of four hundred dollars. And it satisfactorily appears from the testimony that the testatrix only claimed a life estate in the land, and believed that it belonged to her children after her death.

This suit was brought by part of her heirs to have partition of the land, and an account of the rents and profits, and the question to be determined is, did the land pass to the devisees, under the aforesaid clause in the will of the testatrix.

The doctrine is well settled, that extrinsic evidence to prove, not what a testator has expressed, but what he intended to express, is inadmissible. The meaning of the words used has, however, where general expressions are contained in a will, sometimes to be inquired into, and then evidence of the situation and circumstances of the testator, and of the character, nature, and value of the subject matter of the devise, may be introduced, to enable the court, by placing itself in the attitude of the testator, to ascertain his intention, and put a correct construction upon the language used by him; yet such evidence is inadmissible even for this purpose, unless a sufficient indication of intention appears on the face of the will to justify its application. So that, at last, the interpretation of a will must depend upon, and be governed by the sense in which the words contained in it were intended to be understood and applied by the testator, as indicated by the...