White v. White's Guardian

• Decision Date: 29 February 1916
• Citation: 168 Ky. 752
• Parties: White, et al. v. White's Guardian, et al.
• Court: Kentucky Court of Appeals

168 Ky. 752

White, et al. v. White's Guardian, et al.

Court of Appeals of Kentucky.

Decided February 29, 1916.

Appeal from Jefferson Circuit Court (Chancery Branch No. 1).

BENJAMIN H. SACHS, M. A., D. A., and J. G. SACHS for appellants.

J. W. S. CLEMENTS and WM. F. CLARKE, JR., for appellees.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER — Affirming.

This appeal presents for determination the proper construction of the will of Irene E. White, who died a citizen and resident of Jefferson county in the year 1904. She left surviving her two brothers, Dr. William P. White and Richard Aylette White, and three nephews, Daniel P. White, Charles A. White and James Clark White, sons of a deceased brother. Dr. William P. White died December 27, 1914.

That portion of the will and codicil material to this controversy is as follows:

(Will)

"To my brother, William P. White, M. D., I give him the use of my home, No. 1951 Sixth Street, Louisville, Jefferson county, Kentucky, for nine years, he to pay the taxes and insurance the nine years, to remain as it is ready furnished, then share and share alike, I will it, said house and lot, to my brothers, William P. White, Richard Aylette White, and my three nephews, Daniel P. White, Charles Aylette White and James Clark White. If any of them should die, to revert to the surviving one or ones. If my brother, William P. White, M. D., thinks best to sell said house and lot and reinvest, I give him, said William P. White, the power to do so. I want what I leave my three nephews managed by William P. White or some trust company."

(Codicil)

"I leave to my brother, William P. White, my house and lot, No. 1951 Sixth street, Louisville, Kentucky, his lifetime, furnished as it is, if he sees fit to sell, if so, I give him the power to sell and divide as above stated."

The questions presented are: (1) Do the nephews take per capita or per stirpes? (2) Do they take a remainder in fee or merely a defeasible fee? (3) Did Dr. William P. White own an interest in the property which, at his death, descended to his heirs?

1. Cases may arise, of course, where it is apparent from the will, considered as a whole, that the testatrix, although using the words "share and share alike," clearly intended that kindred of a more remote degree should be considered as a class and should take only what their ancestor would have taken had he been alive. Here, neither the clause in question nor the other portions of the will show any purpose on the part of the testatrix to treat her nephews as a class and to equalize them as a class with her brothers. While she makes certain devises and bequests to them in some instances as a class, in other instances she treats them as individuals and discriminates between them as individuals. It follows that the other portions of the will throw no real light on the question. Therefore, in arriving at the intention of the testatrix, we are confined to the particular clause in question. In that clause she does not speak of the nephews as a class or use any language that can reasonably be construed to mean that she intended that they, as a class, should take only per stirpes, or as the representatives of her deceased brother. On the contrary, she mentions the names of her nephews just as she does those of her brothers, and uses the words "share and share alike" with respect to all of them as individuals and as members of a single class. Under these circumstances, we conclude that the nephews take per capita and, therefore, the testatrix's surviving...