Richmond daily register. (Richmond, Madison County, Ky.) 1917-1978, 1922-03-15


i-ond clause of William NJ. Irvine :
will. to- the life tenants son. Da-
arid Irvine (White). and that an
Tptilant. William Irvine Crecnway
! has: 1o interest therein. and COM
planning OF that Judgment the
latter appealed.
1t appears in the plcadingS that
appellee. David Irvine 'tNhitcj }.
( since the death OF Mrs. Irvine.
~ duly prosecuted court pro-
cccding IN the county oil his resi-
! dcucc III the state OF Missouri.
changed his name from David
Irvine White TO David irvine. anI
there IS some question made
about the timclineSS of that ac-
/ ton IN order TO cnutlc him to the
benefit, OF the second clause OF
VIM. NJ. Iryinc's will. but the
/ conclusion we have reached as To
. the merits of the case makes il
unnecessary 10 enter into a dis
ruSsion of that question.
Coming now to the principal
question, for decision and taking
up the first contention. 80. Il
MAY be admitted that some Of the
earlier decisions. including per
hap, some from this court. under
{ the ancient common law doctrine
that there could be no limitation
upon a fec held that where q wi
ur ntrcr instrument al Couvcr-
-Ucc gave an estate absolutely
To- one with express or implied
+ power 90. unrestricted disposition
the estate could not be reduced
/ 10y any subsequent provision o.:
the Instrument. but the court
generally. including this CO..,
have long since come to the crr
Ciu~ion that the rule requiring"
! the intention 1T the maker. either
90! will or decd. a gathered
, from the entire instrument t.
! prevail. over shadows and di.-
+ Pcn-c> with the ancient technical
common law rule aud that where
IL appears from the entire Ian
guagc OF the Will or deed that it
was the intention of the maker
to limit the estate given or grant
ed 10 less than an absolute one.
} that intention will prevail. Hence.
I II may be said that this court has
consistently. since the case oi
: Clay ". Chcnault. los Ky. II.
I held where one clause OF the IN
>rUmcnt was broad enough to
transfer an absolute title and in
another part thereof it appeared
+ that II was the intention OF the
maker TO limit the interest in the
corpus OF the property in the first
taker and To dispose OF the entire
corpus after the expiration of
! that interest. such intention
would prevail and the frs. inter
est would be construed aS lin
tied one according To the terms
oi the instrument creating il
but. where the attempted limit
my clause purportcd 10 dispose al
/ what might remain OF the cor
lpuS. or what might be left of il
after the first taken partially cX
crcised his right OF entire DISPOSE
ton. then and in that case the
attempted limiting clause would
! be void unless the interest OF tho
iirSt takcr was expressly limited
/ 10 lie estate. in which event
his interest would be construed
Is one only Tor his life with
! poWcr OF disposition and if he did
! mot exercise the power of the lin
ting clause would attach 10 thai
: portion OF the property with ref
erencc To which the power had
not been exercised. Cases sup
porting the latter proposition are
McCulloueh's .Admr. VS.. Ander-
son. 90 Ky. 10. and Peddige's
FXecutriX vs. Bolts. % Ky. l.. r.
100. The rule Is sustained BY
text writer's as well. but we will
not cucumber this opinion with a
citation of them. Cases from this
court supporting the first propo-
Sition are Mitchell V. Campbell.
~ Ky. 524; Clay vs. Chenault. SUI
pra: Dulaney V. Dulaney. Is Ky.
/. Z. 1859; Ball yS. Hancock. 50
Ky. i07: I Commonwealth V.
Stoll'S A,lmr.. l32 Ky. 254; Beck
ner vs.. Roth. idem 429: Nelson
v. Nelson. 40 Ky. 40: Todds
Gdn. v. Todd's Admir-. l55 Ky
200: knoSt vs.. knost, LIS XIV.
267; Trustees Presbyterian
Church OF Somerset vs.. Mize.
lSl Ky. 567: Commonwealth vs..
Manuel, lS5 Ky. 50; Phelps vs..
Stoner. lS4 Ky. 400: Fernandez
=. Martin. $50 Ky. 43S. and
Thurmond vs.. Thurmond. 100 Ky.
$50. Ii was further held in the
case OF Prindible vs.. Prindible.
lS6 Ky. go. where the same