Best v. Swift , 104 Ky. 331 ( 1898 )

JUDGE HAZELRIGG

delivebed the opinion of the coubt.

Charlotte Best was the mother of six children, five of whom were living when she died, in 1885. The remaining one, a son, had died several years before his mother, leaving two children. She was the owner of but little personal estate, but owned real estate of the value of some $25,000 or more. The proper construction of her will is the sole question presented on this appeal. After providing for the payment of her debts and funeral expenses, she directs that her children, or such of them as may be unmarried, shall continue to live together at the family residence until the youngest should arrive at the age of twenty-one years; that the sons George and Philip should continue the business of keeping and operating the .barbershop and bathroom attachments; and to. them she gives the furniture, fixtures, and good will of that business, and the full use of the entire house, free of rent, for a family residence, for all the children who may be unmarried and choose to dwell there until the youngest reaches the age of maturity. To her son Charles she gave the sum of $300, to be paid to him as soon as the executor may deem best. To her two daughters, Charlotte and Mena, she gave the parlor and bedroom furniture, wearing apparel, etc., and provided that, if any of the children under twenty-one should be sick, the expenses were to be paid out of the general estate. The remaining clauses of the will, except the tenth, which merely named her executor, furnish the grounds of this controversy, and are as follows: “Clause 7. It is my will that my executor will, when my youngest child reaches the age of twenty-one years, sell my real estate, consisting of my house and lot on * * *, and also my house- and lot on * * *, at public or private sale, and divide the proceeds, except as hereinafter stated, equally between my then living children, or the heirs of their body respectively; and until said time no one of my children can sell, mortgage, or in any manner encumber his or her interest in my estate; and until said time, any one of my children dying without leaving issue, his or her share shall form part of my general estate. Clause 8. To Ludd and Carrie Best, the children of my deceased son, Christopher, I will and bequeath the sum of two hundred ($200} dollars each, to be placed in bank for them when my real estate is sold and paid for, to be paid them when they respectively arrive at the age of twenty-one years; but, should any of them die before that age, the share of either or both so dying shall be equally divided between my then living children and their descendants. Clause 9. It is my will that my executor will at the time of the sale and distribution of the proceeds of my real estate, and after paying necessary expenses, divide all the rest and residue of my estate not herein disposed of, equally between my then living children and their heirs." It was the opinion of the chancellor that the two grandchildren were entitled to share in the proceeds of the sale of the real estate, and were entitled to one-eighth each, it appearing that two of the five children living at the death of the testatrix had died without issue, and the youngest having arrived at the age of maturity. From this judgment, the children have appealed. From the grandchildren’s portion taken under the seventh clause was to be taken the sum of $400 given tliem in the eighth clause, and from this portion of the judgment they have prayed a cross appeal.

, It is the contention of the appellants that the testatrix intended to give to her children proper her entire estate, save the pittance set apart for the two grandchildren in the •'eighth clause; that their father had died in 1876, and she knew that he had left these two grandchildren, yet she nowhere mentions them except in the eighth clause. It is argued that she meant, if all of her children living when :she made her will, in 1885, were living when the final distribution took place, the proceeds of the sale of the property should be divided equally among them, but if any of .them were dead, leaving issue, that issue to take the share’ rof the .parent. We can not concur with counsel in this contention. The testatrix contemplated and made prowision for a division of her estate at a future time, when some of her children would be living, and some of them probably dead, leaving issue. The children then living were to take, but not only so. The heirs of their body, respectively, were also to participate-in the division. It can not be she meant “the heirs of the body” of-the children then living. They would have no heirs. She referred, therefore, to the heirs of the body of such of her children as might be dead. We perceive no reason for saying she intended to limit the devise to the heirs of the body of a part only of her children. She meant, therefore, “the heirs of the body” of all her children who might be dead, leaving such lieirs. We think, further, that by providing against an equal division of the proceeds of the real estate, as was done by the use of the expression, “except as hereinafter stated,” the testatrix clearly indicated that she numbered the grandchildren of her deceased son in the class among whom the division was to be made; otherwise, the clause is entirely senseless. The division was to he equal among- the class, the living and the heirs of the dead, except that (eighth clause) the grandchildren were to have $200-each out of the proceeds before the division was made; and this, we may suppose, was in entire accord with the perfect equality intended, certain specific legacies and benefits having already been provided for the children. It is to be noticed that the division is to be equal after the $400 are set apart to the grandchildren, and we think, therefore, that this sum is not to be taken from the shares of these grandchildren, as indicated in the chancellor’s opinion. They get their specific legacies just as the children get theirs, and then all share alike in the proceeds of the real estate. And this, we think, is true of the'division: of the personal estate provided for in the ninth clause. Wherefore the judgment is affirmed on the original and reversed on the cross appeal, for further judgment in accordance with this opinion.