Case 100 — Action by G. Clarence Pettit, &c. Against Joanna Nob- ’ man, a Lunatic, and Her Committee, por the Sale of Real Estate Jointly Owned by Her and the Plaintiffs.

Nov. 1, 1904.

#### Pettit, &c. v. Norman, &c.

APPEAL FROM JEFFERSON CIRCUIT COURT, CHY. DIV. NO. 1,-SHACKEL-FORD MILLER, JUDGE.

Judgment for Defendants. Plaintiffs Appeal.

Affirmed.

Deed — Trust—Wife and “Her Children” — Construction.

1. A deed of property in trust for the wife of the 'grantor for life, with remainder to her children, inures to the benefit of children of the grantee by a subsequent marriage to another person after divorce from the grantor.

O’NEAL & O’NEAL and ISAAC T. WOODSON, attorneys for appellants.

LEGAL PROPOSITION AND AUTHORITIES.

A conveyance by the husband to his wife, for life, with remainder to her children, at her death, should not be construed to embrace a child born to the wife, during a second marriage; a child of'a second -husband. “The conveyance must be read in the light of surrounding circumstances.” “Her children” means “their children.” Davis v. Hardin, etc., 80 Ky;, 672; Thurman v. White, 18 B. Mon., 576; Smith v. Upton, 12 Law Reporter, 27; Bullock v. Caldwell, 81 Ky., 566; Blankenbaker v. Snyder, etc., 18 Ky. Law Rep., 437; Tucker v. Tucker, 78 Ky., 503; Webb v. Harris and Holmes, 3d Ben. Monroe, 404; Matter of Hallett, Trustee, 8th Paige, N. Y., 875; Lawrence v. Hubbard, 1 Bradf. N. Y., 255; Kurtz Estate, 145 Pa. State, 638; Bolton v. Bolton, 73d Maine, 309; Dorin v. Dorin, L. R., 7 H. L., 568; See v. Deer, 57 Mich., 369; Tharp v. Yarbrough, 79 Ga., 382; Continental Life Insurance Company v. Webb, 54th Ala., 703; Barth v. Barth, 23 Ky. Law Rep., 1246; Adams v. Adams, 20 Ky. Law Rep., 665; Kent and wife v. Barker, 2nd Gray Mass., 536; Collins v. Hoxie, 9 Paige N. Y., 81; 1st Bradf. N. L., 252; 1st Edw. N. Y„ 41; 8th Paige N. Y„ 275; 23rd Wenzel N. Y., 513; Frazer *778v. Frazer,. 24 Ky. Law Rep., 2517; Koenig, etc. v. Kroft, 9 Ky. Law Rep., 946; Mayes v. Kahn, 24 Ky. Law Rep., 2112; 1st Jarman on Wills, 598, citing; 10th Modern, 371, 8th Vin. Abr., 309.

PERCY N. BOOTH, attobxey fob appellees.

POINTS AND AUTHORITIES.

1. A conveyance “in trust for Mildred J. Pettit, *and her children*forever after her” (the acknowledgement to the deed showing that Mildred J. Pettit is the grantor’s wife, and Mildred J. Pettit joining in the deed to release her right of dower) in-eludes *all*of Mildred J. Pettit’s children, both by the 'grantor and by a second husband. Evans v. King, 3 Jones Eq. (N. C.), 387; Atherton v. Roche, 192 111., 252; (Jotra v. Sanasack, 53 111., 456; Allen v. Van Meter, 1 Met., 279; Hollingsworth v. Hollingsworth, 65 Ala., 321; Spurrier v. Parker, 16 B. Mon., 284; L. *&*N. R. R. v. L. S. R. R., 100 Ky., 694.

2. The court will declare the meaning of the words used. Its object is to ascertain, not the intention simply, but his expressed intention. It will not conjecturally interpret the meaning of what was intended to have been written," or what would have been written had a particular event occurred to the writer. Roper on Legacies; Wigram, Ext. Ev. PI., 126, &e.; Allen v. Van Meter, 1 Met., 276; Shore v. Wilson, 9 Cl. & F., 555 per Baron Parke; A. *&*E. Enc. Law, 2 ed., 17, 2-4; Hawkins’ Construction of Wills, pp. 1-4, prop. 1; Thayer, Cases on Evidence, 928, note; Long v. Duvall, 6 B. M., 220.

(a) In construing wills the scope of inquiry to determine the meaning of the words used is. much broader than in deeds. Grant v. Grant, L. R., 5 C. P., pp. 728-729, per Lord Blackburn; Blackburn on Sales, p. 50, note.

3. If the words in their usual and primary sense are sensible with reference to extrinsic circumstances, they shall be interpreted in that sense and no other, regardless of the actual intention manifest from extrinsic circumstances. Wigram, Treatise on Extrinsic Evidence in aid of the Interpretation of Wills; Spurrier v. Parker, 16 B. M., 284; Churchill v. Reamer, 8 Bush, 260; Allen v. Van Meter, 1 Met., 279; L. & N. R. R. v. L. S. R. R., 100 Ky., 694; Breclcenridge v. Duncan, 2. A. K. Marsh, 506; Long v. Duvall, 6 B. M., 220; Timberlake v. Parish, 5 Dana, 352.

(a) In other words, where the plain meaning of a provision uncontradicted by any other provision of the same instrument applies expressly or with reasonable certainty to a particular *779case or object, that meaning will not %be disregarded unless its -application be so monstrous and absurd that no one could so intend.- Cromie’s Heirs v. Louisville Orphans’ Home Society, 3 Bush, 379. per J. Robertson; Sturges v. Crowninshield, 4 Wheat, 202, per G. J. Marshall.

4. The words of a document will, in case of doubt, should be construed most strongly against the party using them. A. *&*E. Enc. Law., 2d ed., 17, 14 and cases cited.

Opinion op the court by

JÍTDGE SETTLE

Affirming.

By this action against their half-sister, Joanna Norman, a lunatic, and the Louisville Trust Company, her committee, the appellants, G. Clarence Pettit and Ben W. Pettit, sought' to obtain a decree for the sale of two lots in the city of Louisville, and a division of the proceeds according to the rights of the parties; it being averred in the petition that the lots were indivisible, that one of them was jointly owned by and in the possession of appellants,and that the other was jointly owned by and in the possession of appellants and the appellee Joanna Norman. One of these lots was by deed of December 18, 1848, conveyed by W. J. Lamp-ton to Napoleon L. Pettit, in trust for the latter’s wife (who was the grantor’s daughter), and her children,.forever; the recited consideration being $1 and love and affection. The other lot was by deed of date November 7, 1849, conveyed by Napoleon L. Pettit to W. J. Lampton, in trust for the wife of the grantor for life, with remainder to “her children.” The consideration expressed in this deed was fl. Napoleon Pettit died several years after • the deeds were made. By his wife, named in each of the foregoing deeds as Mildred J. Pettit, Napoleon Pettit had four children, viz., G. Clarence Pettit, Ben W. Pettit, Willis; who died in infancy, after the execution of the deeds, and before the death of his father, and Mattie, who died after she became an adult, and after the death of her father. After the execu*780tion of the»'deeds Mildred J. Pettit was divorced from Napoleon L. Pettit, and afterwards intermarried with one Norman, from whom she was likewise divorced. The appellee Joanna Norman was the fruit of her marriage with Norman. After the death of Napoleon L. Pettit and children Willis and Mattie Pettit, Mildred J. also died. In the decree of sale which was rendered by the- chancellor it wias adjudged that the appellants', G. Clarence Pettit and Ben W. Pettit, each owned in fee simple 16-45, and the appellee Joanna Norman 13-45, undivided! interest in the lot conveyed by the deed of trust from Napoleon L. Pettit to W. J. Lampión, and that appellants each owned 31-90, and appellee 28-90, undivided interest in the lot conveyed by the deed of trust from W. J. Lampton to Napoleon L. Pettit, and- the proceeds of the sale of the lots were ordered to be, divided among the parties in interest upon the foregoing basis. In view of the fact that there is now no denial of the right of appellee to, the interest of 28-90 in the lot conveyed by W. J. Lampton to Napoleon L. Pettit, it is deemed unnecessary to consume time in showing how that interest Avas arrived at by the chancellor. It should, however, be said that by the judgment of the chancellor the deed from W. J. Lampton to-Napoleon L. Pettit was held to embrace the after-born children of Mildred J., and, therefore, to include the appellee Joanna Norman as a beneficiary. This part of the judgment was excepted to by the appellants, but it is not now contended by their counsel that the chancellor erred in thus construing that deed.

It is, however, strenuously contended by counsel for appellants that the construction given by the chancellor to the deed of trust of November 7, 1849, from Napoleon L. Pettit to W. J. Lampton, was erroneous, in that it was held! to extend to the after-born children of the grantor’s, then *781wife, including the appellee Joanna Norman. In other word®, it is insisted for appellants that as. to the lot deeded by Napoleon L. Pettit the title passed as follow®: First, to his wife. Mildred J., for life, with remainder at her death to her children by the grantor; that this, remainder wasi a vested remainder in their child Willis., then living, subject to open-for the benefit of after-born children of Mildred by the grantor; that upon the death of Willis in infancy his share under the statute descended to his father, who was then living, but upon the death of Mattie, which occurred after the death of her father, and after she arrived at 21 years of age, her share descended to her mother, who 'survived her; that upon the death of the father the share inherited by him from Willis descended to his own children, including Mattie, and upon her death the interest in Willis’ share she inherited from her father, together with the. share of one-fourth in remainder given her by tlie deed, passed to her mother, and upon the death of the latter this share, including that part of Willis’ share inherited by Mattie from her father, descended to appellants and appellee in equal parts, which gave to appellee a one-ninth interest in the lot in question, and this one-ninth is conceded to her in the petition, as amended — that is to say, that Mattie’s share, one-fourth in this lot, plus' one-third of Willis’ fourth which descended to her from her father, making one-third interest in the lot, descended at her death to her mother, and at her mother’s death to áppellants and appellee equally. The chancellor, however, held in the judgment rendered that appellee took one-fifth under the deed of trust from Napoleon L. Pettit to W. J. Lampton, a® one of the “children” of Mildred J.; that she also took one-third of one-fifth as her part of Mattie’s original share and one-third of Willis’ 'share which descended to Mattie from her father *782and was derived by the latter from the death of Willis in infancy; thereby making her interest in the lot 13-45, as before stated. The deed from Napoleon L. Pettit conveys to W. J. Lampton the lot therein described in trust “for the separate use and benefit of Mildred J. Pettit during-her life, and for the fair and equal use of her children forever after her.”

The question presented for1 our consideration is : Should the words “her children” be construed to mean all of the children of which Mildred J. Pettit, alias Norman, was the mother, whether by her first or second husband,' and thereby include the: appellee Joanna Norman as an equal beneficiary ? In construing a will, deed, or other written instrument, the court must keep in view the cardinal rule that the meaning of the words used should be declared, and, if the words employed are such as to convey a single meaning, extrinsic facts, from which a different meaning might be inferred, can not be considered. In discussing the admissibility of extrinsic evidence in construing- wills, this court, in Allen v. Vanmeter’s Devisees, 58 Ky., 276, said: “P>ut this extrinsic' evidence must always be such as, in its nature and effect, simply explains what the testator has written, and not what he intended to have written. In other words, the question in expounding a will is not what the testator actually intended, as contradistinguished from what his words express, but what is the meaning of the words he has used.” In Louisville & N. R. Co. v. Louisville Southern Ry. Co., 100 Ky., 695, 19 R., 11, 39 S. W., 43, it is said: “The rule applying to the construction of contracts is that, when there is no ambiguity in the words employed, the courts can not. put upon them any interpretation contrary to that which the words signify, and this rule applies equally to the construction of statutes and *783every kind of written instrument.” Connelly v. Magowan, 3 T. B. Mon., 153. In Spurrier’s Heirs v. Parker, 16 B. Mon., 274, the question was whether extrinsic evidence should he allowed to show the meaning of certain words in a deed providing for the emancipation of a slave, in discussing which the court said: “But would such extraneous proof be competent to illustrate a deed sufficiently plain of itself? Surrounding circumstances may be brought in aid of the construction of an instrument where its terms: are of doubtful solution, but certainly where the language of an instrument is susceptible of clear solution, no resort can or should be had to extraneous testimony to illustrate it.” Cromie’s Heir’s v. Louisville Orphans’ Home Society, 3 Bush, 379. It will be observed that in the deed under' consideration the grantor nowhere mentions or refers to Mildred J. Pettit as his wife. While it is not customary for a father to voluntarily permit one who is a stranger to his blood to share with his children in his bounty, he may do so if he choose, and the fact that it is unusual will not per se authorize a court to disregard the plain meaning of the word® in the deed conferring such bounty. It is not made to appear that the grantor did not understand the legal meaning and effect of the words “her children” as used in the deed. The words themselves are free from ambiguity, and there are no other words in the instrument that conflict with them, or throw any doubt upon their meaning; nor is it intimated that at the time of making the deed the grantor was deceived or misled, or that he was subject to any undue or improper influence. If must be presumed, therefore, that the instrument in all its parts expresses the intention of the grantor. It follows, therefore, that the chancellor’s construction of the deed from Napoleon L. Pettit to W. J. Lampton was authorized by its language. It would unneces*784sarily lengthen this opinion to enter upon the discussion of the several authorities cited by learned counsel for appellants in support of their contention. We think, however, that a critical examination of them will demonstrate that they do not militate against the views herein expressed. They can readily be distinguished from the case at bar. Each of them involved the construction of a will or deéd because of ambiguities or indefinitenes® of language that rendered it impossible to arrive at the intention of the tes-tator without the aid of extraneous circumstances. Take, for example, appellants’ leading authority,, the case of Davis v. Hardin, 80 Ky., 674. It appears that the deed in controversy conveyed to one Thompson certain land in trust for “Mary E. Jones and Wm. P. Jones, and any other child or children of her begotten by D. W. Jones.” The deed provided for the enjoyment of the land by the grantor and his wife, unless the trustee should take possession of it, and in that event he was to pay the entire rent and profits to the wife. On this state of case it was held by the court that the wife took a life estate, with remainder to- the child of herself and grantor then living, and such as were thereafter born. The only point of difficulty under the uncertain language of the deed was as to the character of estate the wife took. With that fact determined, there was no difficult}’ as to the interest of the children. The deed was certain and definite to the effect that its provisions includ: ed not only the one child of the grantor and wife then living, but also any other child or children of the wife thereafter begotten by the grantor. The • restricted rule of construction as to the word “children” referred to by counsel for appellants as applying to insurance cases is not in point here. Obviously, the word “children” in an insurance contract would be held to mean children of the insured, *785for in law the children of others have no insurable interest in his life.

J udgment affirmed.

.Petition for rehearing by appellant overruled.