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Gresham v. Durham

June 23, 1954

GRESHAM
v.
DURHAM ET AL.



Waddill

Mrs. Olio Vera Gresham, appellant herein, brought this suit to compel specific performance by appellee, Arlan B. Feather, of a contract to purchase two tracts of land in Boyle County from appellant. By way of answer and cross-petition, Feather asserted that appellee, Daisy Lewis Durham, was claiming an interest in the property and asked that she be joined as a defendant and that the rights of the parties be adjudicated. Olio Vera Gresham appeals from a judgment declaring her to have no interest in the property.

Appellant claims the land as devisee under the will of Sterling C. Brewer, who died in 1897 at the age of 81. His will reads as follows:

"I, S. C. Brewer of Boyle County, State of Kentucky, do make this my last will and testament to supercede all wills previously made by me.

"First: It is my desire that all my just debts and funeral expenses be paid, then I desire that my wife, Elizabeth Brewer, have all the cash then on hand and all the note (sic) and accounts due, also three shares of stock in the Citizens National Bank of Danville, Kentucky and I desire that she does not sell or dispose of said bank stock until the expiration of said banks charter, I further desire that she have all of my property both real and personal during her natural life, if she should have bodily heir or heirs the property shall go to them at her death and if she my wife, Elizabeth Brewer should marry again the property shall go to the heirs above named from the date of her second marriage.

"10th day of November 1897

/s/ Sterling C. Brewer'

Appellant was the only child of Elizabeth Brewer, and was therefore her only bodily heir. She was born out of wedlock about five years prior to the marriage of Sterling C. Brewer and Elizabeth Brewer. No one now alive knows the identity of appellant's father.

We are in accord with the opinion written by the learned trial judge, and incorporate it herein, as follows:

"In Corn v. Roach, 225 Ky. 725, 9 S.W.2d 1074, the court said:

"A court, in construing a will, is not confined to a mere definition of particular words employed, but is required to take a comprehensive survey of the entire will. The apparent objects operating to influence the testator's mind should be considered and the words used in the will given that reasonable construction best calculated to carry out the wishes of the testator as reflected by his will.'

"The fundamental rule in the construction of wills is that the intention of the testator, as gathered from his entire will, must prevail, unless it be opposed to some positive provision of the law, or some general principle of public policy. The entire will must be taken into consideration; each part and clause thereof must be read in connection with the other parts.' Wickersham v. Wickersham, 174 Ky. 604, 608, 192 S.W. 688, 690.

"When the language of the will is obscure and of doubtful meaning, the courts have the right, and it is their duty to place themselves by extrinsic testimony in the place of the testator at the time he made the will by showing the circumstances and conditions with which he was surrounded, and to determine from these the sense and meaning which he intended to convey by the language he employed. Prather v. Watson's Ex'r, 187 Ky. 709, 220 S.W. 532; Penick v. Lewis, 194 Ky. 231, 238 S.W. 745.

"* * * it is a familiar rule in the construction of wills that a word may be substituted whenever it is necessary to do so in order to carry out what seems to be the plain intention of the testator.' Dockery's Ex'rs v. Dockery, 170 Ky. 194, 185 S.W.2d 849, 851.

"* * * when it is evident that the testator has not expressed himself as he intended to have done, and supposed he had done, and the defect is produced by the omission of some word or words, and when it is certain beyond reasonable doubt what particular words were omitted, they may be supplied by intendment, and the will read and ...


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