Case 117 — Action by T. J. Smith and Others Against Elise Smith and Others, for a Construction of the Will of T. J. Smith, Deceased.

Feb. 23.

#### Smith, &c. v. Smith, &c.

APPEAL FROM MADISON CIRCUIT COURT — J. M. BENTON, CIRCUIT JUDGE.

Judgment for Defendants. Plaintiffs Appeal.

Affirmed.

Wills — Construction—Estate Devised — Life Estate and Remainder — “Children.”

1. Under a will giving personal and real property to testator’s wife, to go at her death to “my son and his children,” the son takes but a life estate, with remainder to his children; the word “children” being used' as a word of purchase, and not of limitation.

On Rehearing.

2. Where the construction given certain devises by the trial court was favorable to appellants, and no appeal was taken from that part of the judgment by either party, the construction so given will not be reviewed on appeal from other parts of the judgment.

C. H. BRECK and W. S. MOBERLY, attorneys foe appellants AND JESSE COBB.

1. We respectfully suggest that a practical business man, as testator is shown to have been, would never for a moment have *900meant that bank stock should be tied up to use only during two lives and then belong to grandchildren, unborn, and who may not be born for thirty-five or forty years after his death, and who could not come into possession of it until they had reached lawful age, thereby postponing the lawful ownership fifty-five or sixty years, especially when no provision is made for a trustee to hold or sell the same or .to reinvest it when the interest of the beneficiary required a sale.

2. It is evident that the testator only intended the devise as a convenient income for his wife and then to belong to his son absolutely.

R. E. ROBERTS, for infant appellees.

1. It is contended for infant appellee that the word “children,” used in the will are words of purchase, and the bank stock and Uollins place go to them under the will, after the death of testator’s wife and the death of his son, the father of appellees, the devise being, “to my wife and at her death this property goes to my son and his children.”

2. The word “children” in devise is used as a word of purchase, and not of limitation, unless there is1 some qualifying word or phrase in juxtaposition thereto to show that it is a word of limitation, or unless in some other part of the writing which explain that the testator used the word in the latter sense.

AUTHORITIES.

Mefford v. Daugherty, 11 R., 157; Carr v. Estell, 16 B. Mon., 245; Adams v. Adams, 20 R., 655; Poland v. Chism, 23 R., 1072; Dunlap v. Shreve’s Exr., 2 Duv., 334; Moran-v. Dilehay, 8 Bush, 434; Lackland v. Downing, 11 B. Mon., 32; Williams v. Duncan, 92 Ky., 125; Bradley v. Skillman, 3 R., 734; Hood v. Dawson, 17 R., 880.

Opinion of the court bt

JUDGE SETTLE

Affirming.

This action was instituted by the appellants, T. J. Smith, Fanny Smith, his mother, and Elise Bennett Smith, his wife, against the appellees, Jesse Cobb, Elise Smith, and T. J. Smith, Jr., the two last being the infant children of T. J. Smith and Elise Bennett Smith, and represented by a guardian *ad*litem,' upon whom summons was served for *901them. The object of the action is to obtain a construction of certain clauses of the will of T. J. Smith, Sr., deceased, who was the father of the appellant T. J. Smith, and the husband of the appellant Fanny Smith. The will in question was duly admitted to probate by the Madison county court soon after the testator’s death, which occurred in Madison county, where he was at the time domiciled. The will is as follows:

> “I, Thomas J. Smith, of Richmond, Madison county, Ky., being of sound mind and disposing memory, do make and declare this to be my last will and testament.

> “1st. I wish all my debts and funeral expenses- promptly paid.

> “2d. I give to my wife, Fanny Smith, during her life, the home place where I now reside on Lancaster avenue, and all the household and kitchen furniture with all its belongings, except what belongs to my son; also my father’s and mother’s portraits, which I give to my son. I give to my niece, Rosa May Mobberly, my large silver ladle, an heirloom given me by my mother, and at the death of my wife this- property to go to my son or his heirs. I also give to my wife the store house situated on Main street in Richmond, Ky., during her life and at her death to go to my son and his heirs. 1 also give to my wife 100 shares of bank stock in the Farmers’ National Bank, of Richmond, Ky., at her death this property goes to my son and his children. I also give to my wife during her life 140 acres of land upon the Irvine pike and known as the Collins’ place, at her death to my son and his children. I give in trust to Curtis F., W. S. and Thomas J. Mobberly for the benefit of my sister, Bettie, for her sole and separate use and benefit, free from the debts of her husband, 110 or 112 acres of land situated in *902Fayette county, Ky.; at her death this property goes directly to her children or their heirs.

> “I give in trust for the benefit of my son and his children to S. S. Parks, W. W. Watts and Thomas J. Mobberly my farm on the Barnes Mill Pike, known as the old Major Turner farm, containing about 340 acres of land. I also give to the same parties in trust for the benefit of my son and his children 54 acres of land recently bought by me from J. Stone Walker on the Barnes Mill Pike. I also give to the same párties in trust for my son and his children 90 acres of land on the Lancaster Tike, known as the Best land.

> “I also give to my son absolutely 8 acres of land in Kansas City, Mo., in East Bottom in the old city limits in Kansas, City, Mo. I give to his wife, Elise Bennett Smith, my comer lot on the summit recently purchased by me from W. B. Smith.

> “I give in trust to Thomas J. Smith for the benefit of Thomas Jones, my body servant, the house and lot where he now lives fronting on Catholic Church street 50 feet and running back to Stofer’s line. I charge Thomas J. Smith’s estate with 100 bushels of coal to be delivered each and every Christmas to the said Jones during his life. I also charge Thomas J. Smith’s estate with all county, town and State taxes each year during said Jones’ life. At the death of said Thomas Jones this house and lot is to go directly to the children that he now has and may have by his present wife, Mary.

> “I give to Tabitha White $50.00 in cash to be paid in six months after my'death.

> “All the residue of my estate of every kind and character real, personal or mixed, all dioses in action, to my son, Thomas J. Smith, and I appoint him my sole executor with*903•out bond to act for me and in my stead and sign all necessary papers and deeds the same, as if I were living. .

> “I do not desire or want an -inventory taken of my estate.

> “I direct a monument (shaft) in the center of my father’s lot in the Richmond cemetery to cost $800.00, with the name of my father and mother only inscribed thereon.

> “In winding up my estate I desire no public sale to be made of anything belonging thereto.

> “Having the utmost confidence in my son’s honesty and integrity, he knowing that my prosperity commenced with my father and mother, if he should die without legal heirs of his body, I desire him to give to my sisters’ children all the property that he may be seized with at his. death, but first to provide amply for his wife in whom I am well pleased. I direct my executor at my death to pay my wife $500,00 in cash.

> “This January 28th, 1899.

> “Test THOMAS J. SMITH.

> “W. W. Watta,

> “J. Stone Walker,

> “H. C. Jasper.”

It appears from the agreed facts found in the record that the 140 acres of land on the Irvine pike, called the Collins Place, has, since the death of the testator, been sold and conveyed by his son, T. J. Smith, and his widow, Fanny Smith, to the appellee Jesse Cobb, and since sold by Cobb to one Theodore Wilson, who declined to accept the deed, thereto tendered him by Cobb on the ground that the son and widow of T. J. Smith, Sr., were by the will devised only a life estate each, successively, in the land, with remainder in fee to the son’s children — consequently, that the deed from them to Cobb only conveyed to him the life estate of each in the land, and the deed tendered by Cobb to Wilson *904could convey only such title as Cobb had received from his grantors. It is insisted for appellants that the will gives . the Collins place to the testator’s widow for life, with remainder in fee to their son, and that the bank stock also given the widow for life by the will at her death goes to the son absolutely. And this court is asked to say what interest, if any, the children of appellant T. J. Hmith take in the Collins place and bank stock under their grandfather’s will. The chancellor, from whose judgment this appeal was taken, decided that the Collins place and the 100 shares of bank stock are given by the will to the widow of the testator for her life, and at her death to his son, the appellant T. J. Smith, for his life, and at the latter’s death to his children.

The provisions of the will which we are asked to construe are as follows: (1) “I also give my wife 100 shares of bank stock in the Farmers’ National Bank, of Richmond, Ky., at her death this property goes to my son and his. children.” (2) “I also give to my wife during her life 140 acres of land on the Irvine pike and known as the Collins’ place, at her death to my son and his children.” The word “children,” as here used, must, we think, be considered as a word of purchase, and not of limitation, and must always be so regarded when so used in a devise, unless there is some qualifying word or phrase in juxtaposition thereto to show that it is intended as^ a word of limitation, or unless in some other part of the Avill there are words or phrases which explain .that the testator used the word “children” in the latter sense. In Carr v. Estill, 16 B. Mon., 309, 63 Am. Dec., 548, a will devised to “Mary Baker Didlake and her children” a farm. At the time of making the will, Mary Baker Didlake had no children, but one was thereafter born to her. It was held by the court that she took under the devise an estate for life, and the child the remainder. In Mefford v. Dougherty, 11 *905S. W., 716, 11 Ky. Law Rep., 157, it was held that a devise to a. son and to his children-, heirs of his body, gave the son a life estate, with the remainder to his children. The court said the qualifying words, “heirs of his body,” did not make the word “children” a word of limitation. In Frank v. Unz, 91 Ky., 621, 13 R., 226, 16 S. W., 712, it is- said: “It may be regarded as settled law, in cases where the devise is by the husband directly to his wife “and children, that the wife takes a life estate only, unless there is-something else'-in the will showing a contrary intention.” Weaver v. Weaver’s Ex’rs, 92 Ky., 491, 13 R., 699, 18 S. W., 228, 36 Am. St. Rep., 604; Koenig, etc., v. Kraft, etc., 87 Ky., 95, 9 R. 945., 7 S. W., 622, 12 Am. St. Rep., 463; Poland v. Chism, 64 S. W., 833, 23 Ky. Law Rep., 1072. In Adams v. Adams, 47 S. W., 335, 20 Ky. Law Rep., 655, the language of the devise was: “It is my will and desire that all the income of my estate, real, personal and mixed, I give and bequeath to my daughter, Martha Jane Adams, and her children in tlieir exclusive right.” The contention of the appellant was that the wife took jointly with her children in fee, one-third each, but the court (Judge Hazelrigg writing) said: “We think the intention of the testator was to give the whole estate to his daughter for life, and at her death to her children. This seems to be the trend of the modern decisions on the use of the words here involved.” An examination of the authorities relied on by counsel for appellant will show that they do not conflict with those from which we have quoted. They are cases in which, from the use of qualifying words, or from other parts of the will, it was made to appear that the word “children” was used exclusively in the sense of “heirs,” •and consequently as a word of limitation.

By the will in this case, except the $500 in mo.ney directed to be immediately paid her by the executor, all that the tes*906tatoi* devised to bis wife was for life only. He, however, made a distinct difference in the devises to his son; that is, certain real estate was devised to him absolutely. Other similar property was by the will put in the hands of trustees for his and his children’s benefit, but as to the property in which the testator’s wife was given a life estate by the will, and the son the remainder, in the matter of the residence property on Lancaster avenue and the store house in Richmond, the devise was to the wife for life, with remainder to the son and his “heirs.” In respect to the bank stock and 140 acres of land known as the “Gcllins Place,” the devise was to the wife for life, with remainder to the son and his “children.” It would, perhaps, do no violence to the intention of the testator to hold that the -word “heirs,” in the other clauses of the will, was used in the sense of children. If so, it would limit the son’s interest in the store house and residence property to a life estate, as in the case of the Collins’ place and bank stock, though the chancellor seems to have thought otherwise, as he held that T. J. Smith, the testator’s son, was given by the will the remainder in fee in the store house and home place. In other words, it was held that as to that property the children of T. J. Smith took no interest whatever under the will. It may be that the word “heirs” was used by the testator in that connection advisedly, and for the purpose of excluding his son’s children from any interest in that property; but, if so, it but strengthens the conclusion that the word “children” was also used advisedly, and for the express purpose of investing them with just such interest in the Collins place and bank stock as was adjudged them by the chancellor in his construction of the will.

It follows from what has been said that the deed from T. J. and Fanny Smith to Jesse Cobb conveyed only the life *907estate of each of the grantors in the Collins place, and, further, that the children of T. J. Smith have, under their grandfather’s will, the same interest in remainder in the hank stock that they have in the Collins place.

The fact that the hank in which the stock is held will soon go into liquidation, or have- to be reorganized because of its charter, can not affect the rights of the remaindermen or other parties in interest. The same limitations and conditions may be placed upon a devise of personal estate as upon a devise of real estate. Miller’s Ex’r v. Simpson, 2 S. W., 171, 8 Ky. Law Rep., 518. And if the bank in which the stock is held should go into liquidation, the chancellor may, upon the petition of the parties in interest, direct the reinvestment of its proceeds in other bank stock,, good securities, or other property, to be held for the benefit of the devisees as provided by the will.

As we are not asked, in the briefs of counsel, to construe those parts of the will which relate to the devises in regard to the storehouse in Richmond and the residence property on Lancaster avenue, we do not pass upon the same.

Judgment affirmed.

Response to petition for a rehearing by

Judge Settle.

The court is asked to extend the opinion herein by giving its construction of those parts of the will of T. J. Smith containing the devises as to the “Dwelling House” on Lancaster avenue, and the “Store House” situated on Main street, in Richmond. As the construction given the devises in question by the judgment of the lower court was as contended for by appellants, and therefore favorable to them, and no appeal was taken by them from that part of the judgment, and no cross-appeal was prayed or taken by appellee therefrom, it is the opinion of the court that the devises referred *908to are not properly before it for construction, and that the extension of opinion asked should not therefore be granted.

Wherefore the petition is overruled.