HOWARD v. HOWARD'S TRUSTEE, Ky. Ct. App., Judgment, Law, casemine.com

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Attorney(S)

S.D. ROUSE for appellant. WILLIAM A. PRICE for appellee.

Judges

OPINION OF THE COURT BY JUDGE SAMPSON

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Smart Summary

Factual and Procedural Background

The case concerns the construction of the will of Amelia E. Semple of Covington, contested by her granddaughter, Susan Bruce Semple. The original will, executed in 1893, devised $4,000 to the daughter, Leila Semple, as an advancement equal to one made to the son, Ernst Semple, and then divided the residue equally between the son and daughter. After Ernst's death, three codicils were added: the second codicil substituted the granddaughter Susan Bruce Semple for her deceased father Ernst as a devisee, directing that her portion be held in trust until she reached twenty-one years of age; the third codicil provided that if the granddaughter died without children, her interest would pass to Leila Dorhmann and her heirs.

Upon reaching the age of twenty-one and having children, the granddaughter demanded distribution of her share from the trustee, the Covington Trust Company. The trustee refused, citing the third codicil’s contingency. The chancellor ruled that the granddaughter held only a defeasible fee subject to defeat if she died without children at any time, not an absolute fee. The granddaughter appealed this judgment.

Legal Issues Presented

When does the devise to the granddaughter vest: at her reaching twenty-one years or is it subject to a condition subsequent?
Does the granddaughter take an absolute fee simple estate, or only a defeasible fee subject to forfeiture if she dies without children at any time?
How should the phrase "die without children" in the third codicil be interpreted in relation to the timing of vesting?

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Knox v. Knox, 186 Ky. 320	Rule favoring earliest possible vesting of estates; "dying without issue" refers to a definite period fixed in the will rather than an indefinite failure of issue.	The court applied this rule to interpret the codicil as intending vesting at the granddaughter’s twenty-first birthday, not subject to indefinite suspension.
Fulton v. Teager, 183 Ky. 381	Supports the principle that limitations on estates should refer to fixed periods rather than indefinite contingencies.	Reinforced the court's interpretation that the limitation on the granddaughter’s estate was not indefinite.
Washer v. Washer, 143 Ky. 645	Legal principle favoring vesting of estates at earliest possible date.	Used to bolster the conclusion that the estate vested absolutely at age twenty-one.
McCauley v. Dale, 32 Rep 1243	Supports the rule that vesting should not be suspended indefinitely.	Applied to interpret the codicil’s language consistently with early vesting.
Harvey v. Bell, 118 Ky. 522	When multiple contingencies exist, the one that vests the estate earliest will be preferred.	Guided the court to select the interpretation that vested the estate at the granddaughter’s majority.
Orem v. Campbell, 175 Ky. 210	Same principle as Harvey v. Bell regarding earliest vesting.	Supported the court’s choice of construction favoring early vesting.
Louisville Gas and Electric Co. v. Starin, 170 Ky. 819	Estates will be treated as vested wherever possible without violating will language.	Used to affirm the presumption in favor of vesting at the earliest opportunity.
Prewitt v. Prewitt, 178 Ky. 346	Doubt in will construction resolved in favor of vesting of estate.	Supported the court’s conclusion that the granddaughter’s estate vested absolutely at age twenty-one.

Court's Reasoning and Analysis

The court analyzed the language of the original will and subsequent codicils, focusing on the timing and nature of the granddaughter’s estate. The original will created an advancement and divided the residue between the son and daughter. After the son's death, the granddaughter took his place under the second codicil, which also placed her share in trust until she reached twenty-one years old. The third codicil introduced a limitation that if the granddaughter died without children, her share would pass to the daughter.

The court reasoned that the phrase "die without children" must be tied to a definite period to avoid indefinite suspension of vesting, which the law disfavors. The court rejected the interpretation that the condition applied indefinitely after the granddaughter’s majority. Instead, it held that the condition applied only up to the time the estate vested—her twenty-first birthday. This interpretation aligns with the well-established legal principle favoring early vesting of estates.

The court cited multiple precedents to support this principle, emphasizing that the law presumes estates vest absolutely at the earliest possible date unless the will clearly indicates otherwise. Since the codicil did not contradict this presumption, the court concluded the granddaughter took an absolute fee upon reaching twenty-one years old, regardless of whether she had children at that time.

Holding and Implications

The judgment of the lower court is reversed.

The court held that the granddaughter, Susan Bruce Semple, took an absolute fee simple estate in the devised property upon reaching the age of twenty-one years. The limitation in the third codicil—that her interest would pass to Leila Dorhmann if the granddaughter died without children—was construed to apply only as a condition precedent to vesting, not as a condition subsequent that could divest the estate after vesting. Consequently, the trustee must distribute the estate to the granddaughter.

This decision directly affects the parties by requiring the trustee to pay the estate to the granddaughter. The opinion does not establish new precedent beyond reaffirming the established legal principle favoring early vesting of estates and limiting the duration of contingent conditions.

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Howard v. Howard's Trustee.

OPINION OF THE COURT BY JUDGE SAMPSON

Reversing.

The will of Amelia E. Semple of Covington is presented for construction by her granddaughter, Susan Bruce Semple, on the disputed question of when the devise to the granddaughter shall take effect and whether in fee or some lesser estate. The original will of Mrs. Semple was executed in January, 1893. She was the mother of two children, a son, Ernst Semple, and Leila Semple, a daughter. The original will devised $4,000.00 to the daughter to equal an advancement of $4,000.00 made to the son, and then directed "the residue of my estate remaining after the payment of said sum of $4,000.00 to my daughter, shall be divided equally share and share alike between my son, Ernst, and daughter, Leila." She added three codicils, the first one relating only to the appraisement of her estate; the second recited that "since the making of said will, my son Ernst Semple has departed this life, leaving surviving, him his widow, Florence Bruce Semple, and an only child, to wit: Susan Bruce Semple. The sum of four thousand ($4,000.00) dollars which my will provides shall be charged against my son shall be charged against his said daughter, Susan Bruce Semple, and the residue of my estate, remaining after the payment of the sum of four thousand dollars to my daughter, Leila Dorhmann, shall be divided equally share and share alike between my said daughter Leila and my said granddaughter Susan Bruce Semple. . . . That portion of my estate which by this will shall go to my said granddaughter . . . I direct shall be held by the Covington Trust Company of Covington, in trust for my said granddaughter, until she shall arrive at the age of twenty-one years. . . ."

The third codicil reads:

"I hereby direct that should my granddaughter Susan Bruce Semple die without children I wish the entire interest in my estate to go to Leila Dorhmann and her heirs."

The granddaughter has since married and is now the mother of children. Having passed the age of twenty-one years she has demanded of the trust company the balance of the estate now in its hands covered by the devise to her, but the trust company has declined to pay it over on the ground that under the terms of the third codicil the estate may pass to Leila Semple Dorhmann and her heirs if the granddaughter, Susan Bruce Semple, should die without children, and the trust company as trustee has joined in the prayer of the petition asking for a construction of the will and for advice of the chancellor. The chancellor adjudged the granddaughter take only a defeasible fee in the estate devised to her, subject to be defeated by her death at any time without a child or children surviving her, and held that she did not take an absolute fee in the estate. It is from that judgment that this appeal is prosecuted.

The granddaughter, Susan, is the only child of the son, Ernst, and takes his place as devisee under the will as amended by the codicil. Reading the codicils in connection with the original will the daughter, Leila, was to receive $4,000.00 to make her equal with her brother, Ernst. It is then provided that the "residue of my estate remaining after the payment of the sum of $4,000.00 to my daughter, Leila Dohrmann, shall be divided equally, share and share alike, between my said daughter Leila and my said granddaughter, Susan Bruce Semple." There is no limitation upon the devise to the granddaughter to this codicil except that the portion going to the granddaughter is to be held by the trust company in trust for the granddaughter until she arrived at the age of twenty-one years. Had no other codicil been added undoubtedly the granddaughter would have been entitled to receive her portion of the estate as her absolute property on her arrival at the age of twenty-one years. In other words, the estate was to vest absolutely in the granddaughter when she arrived at the age of twenty-one years. The last codicil merely provides for the contingency of the granddaughter dying without children and passes her share of the estate to Leila Semple Dohrmann and her heirs in case the granddaughter should die without children. The question is, to what time does the expression "die without children" relate? Does it mean die without children at any time, or die without children before the death of the testatrix or die without children before the granddaughter arrives at the age of twenty-one years?

The law favors the vesting of estates, and we have frequently held that a limitation like the one involved here, "dying without issue," refers to a definite period fixed in the will rather than to an indefinite failure of issue. Knox v. Knox 186 Ky. 320; Fulton v. Teager 183 Ky. 381; Washer v. Washer, 143 Ky. 645; McCauley v. Dale, 32 Rep 1243. Manifestly "dying without issue," as employed in the codicil before us, does not mean dying without issue before the death of the testatrix, because the will did not take effect until the death of the testatrix, but it must have been intended to mean dying without issue before the granddaughter arrived at the age of twenty-one, the time fixed for the vesting of the estate, and was not intended to mean an indefinite failure of issue because that would have suspended the vesting of the estate for an indefinite period in violation of the rule favoring the vesting of estates at the earliest possible date. While it is yet possible for the granddaughter to die without issue living at the time of her death, it is hardly probable, and if such a construction be placed upon the terms of the codicil it might defeat the vesting of the estate for a great number of years. As said in the case of Knox v. Knox, supra:

"It is a well recognized rule that when there are two or more periods fixed in an instrument for the happening of a contingency upon which an unlimited estate in land will devolve, that one will be selected which will first vest the fee simple title and give the devisee or grantee an absolute estate. Harvey v. Bell, 118 Ky. 522; Orem v. Campbell, 175 Ky. 210. Applying this rule to the language of the codicil, we must hold that the testator intended and his language plainly means, that at the death of one of his children childless his part to 'come back to the other children' if the death happened during the minority the child dying, and not at any future time after he attained his majority, as contended by Wallace S. Knox. He insists that the children, who are now much above the age of twenty-one years, cannot sell or convey their interests in the landed estate of their father, except subject to the contingent interest of the other children, to take effect on the death of the child conveying without bodily heirs because of the alleged limitation contained in the codicil, although there is no residuary estate. This contention is against the settled policy of law, which seeks to fix an absolute estate in land in the devisee or grantee at the earliest possible moment rather than to defer it and continue the uncertainty for an indefinite time, as was contended by Wallace S. Knox."

It was said in the case of Louisville Gas and Electric Co. v. Starin, 170 Ky. 819, that the law will always treat an estate as vested where it can do so without violation to the language contained in the will. "In every case of doubt the doubt will be resolved in favor of the vesting of the estate." Prewitt v. Prewitt, 178 Ky. 346.

There is nothing in the codicil inconsistent with the conclusion reached that the estate of the granddaughter vested absolutely in her on her arrival at the age of twenty-one years. No presumption will be indulged in favor of a suspension of the vesting of an estate. Every rule of law is lo the contrary. That being true, the presumption is, and the law follows, that the testatrix meant for the estate devised to her granddaughter to finally vest in the granddaughter on her arrival at the age of twenty-one years, whether with or without children.

For the reasons indicated the judgment is reversed, with directions to enter one in conformity to the views expressed herein.

Judgment reversed.

HOWARD v. HOWARD'S TRUSTEE