majority">

Opinion op the C ourt by

Judge Hobson

Reversing.

William Cornwall, Sr., died testate, a resident of Jefferson county in March, 1895, leaving three children surviving him, two sons and a daughter. His will was duly admitted to probate, and this controversy has arisen between his children as to its construction, the two sons insisting that the estate is left to the three children equally, and the daughter that one-third of the property known as the “factory of Cornwall & Bro.” goes to her in addition to one-third of the estate. The will, after a clause appointing the two sons as executors without bond, as far as material, reads as follows:

“I give all my real and personal property I may die possessed of to my executors, or executor, in trust for the purposes named in this, my last will, and my rents or incomes of my estate, after paying taxes, insurance and repairs shall be equally divided among my children, viz; My sous, William and Aaron W. Cornwall, and my daughter, Sally W. Hill. Any interest I may have in the manufacture of soap and candles at the time of my death may he continued by my executors or executor with my sons as partners or at the election of my sons be continued as stock in a manufacturing corporation, or invessted in the stock of a corporation that may be formed for manufacturing soap and candles; or my sons may take my interest at its value as shown by the books at the time of my death and pay for the same in one- two and three years time, without security, paying interest at the *644rate of six per cent, per annum. The value of my interest shall be ascertained by taking stock at the ■ usual time which is any of the summer months when candle market is usually stopped. Or the stock may be taken if my sons so elect to do so, as near the time of my death as may be deemed to involve the least loss of time and business. And the election herein-above may be exercised by my sons after taking the account of stock. My daughter’s share of any money coming to her under this will, or her share of any real estate shall be held by my executors, or executor, in trust for her separate use, free from the control of any husband she may have, and she may will it to any child or children she may have who may survive her.

“The income from rents or dividends, if any that may accrue for my daughter, shall be paid to her only on her’ receipt, free from any debt or claim of any husband she may have. She shall not anticipate the income by drawing orders or by creating-debts or pledging it for any purpose, and if she should the amount so anticipated or pledged shall be forfeited and distributed to my other children then living, or to their descendants then living. And in the event of any husband she may have surviving her, said husband shall have no estate of curtesy in said property óf my daughter nor any interest therein by virtue of his married relation. In the event that the portion of the factory known as the factory of Oornwall & Bro. now belonging to my daughter, should again become my property, I devise said portion to my daughter and her heirs forever as her separate estate-, free from the control of her husband, R. E. Hill, or any husband she may have and it shall not be subject to any right of curtesy or any other right in or to him by virtue *645-of his marriage to my daughter or by virtue of any other circumstance or condition whatever. I direct that no debt or claim which I may now have or here • after have against my children or either or any of them shall be made against them or either or any of them; but that all and every one of said claims or debts against my children or any of them shall be considered as paid and cancelled to the full extent as if there never had been any claim against them or either of them. And I expressly direct that no claim or debt that I now have against my children or either of them or any of them shall ever be considered as an advancement to them or either of them; and that under no circumstances shall any debt or claim I may now have or may hereafter have against any of my children or either of them be subject to the rule or principle of advancement.”

To understand the will it will be necessary to read it in the light of the facts surrounding the testator at the time. William Cornwall and John Cornwall, doing business under the name of Cornwall & Bro., operated a candle and soap factory in Louisville for many years before the death of John Cornwall, which occurred in the year 1867. After his death the property was sold and was bought by William Cornwall,■ Jr., who conveyed two-thirds of it to his father, retaining one-third himself. They continued to run the manufacturing business in the name of Cornwall & Bro. In 1874, when Aaron Cornwall became of age, William Cornwall, Sr., conveyed to him a one-third interest in the factory property; the two sons and the father operating it from that time on in the old name of Cornwall & Bro. In 1875, the daughter having become of age, the father conveyed to the two sons the remaining third of the property which he then owned *646in trust for her use, reserving in himself the power of revocation; the firm paying her as rent $1,000 a year. Thus things ran along until 1891, when the firm, having become insolvent, made an assignment for the benefit of their creditors; their debts amounting to about $350,000. The assignee proceeded with the settlement of the trust and paid several dividends to the creditors. In the year 1894 the Cornwalls undertook to make a compromise with their creditors, and finally did make a settlement on the basis of $60,000. To raise the $60,000 it was arranged that William Cornwall would revoke the deed to the daughter, and the two sons would convey to him their interest in the factory property, and he would then convey this property, together with some other land he had in Texas and a warehouse property owned by him and his sons, to the Louisville Trust Company, the Louisville Trust Company to furnish him $60,000, and to sell the land when a sale could be made, so far as necessary, and to convey back to William Cornwall, Sr., so much of the property as was left after the payment of the debt. The arrangement was carried out, the deeds were made, and the creditors were settled with. The will is dated November 24,1894. The agreement between the parties as to the conveyance of the property to the Louisville Trust 'Company was made on December 4, 1894. The deeds were executed on January 2, 1895. William Cornwall, Sr., died the following March. After his death in the year 1900 the Louisville Trust Company sold the factory property and the warehouse property for $30,000. Its debts then amounted to something over $23,000, and it turned over the surplus to the executors of William Cornwall, Sr. It is conceded that the factory property in this sale brought $14,000. Mrs. Hill insists *647that one-third of this, with interest, should be paid to her. Whether she is entitled to it or not depends upon the question whether the event took place that the third of the factory property belonging to Mrs. Hill again became the property of William Cornwall, Sr. It is evident from the will as a whole that the testator, at the time the will was made, contemplated reopening the factory and running it as before. What he had in his mind was that after the creditors were paid, and he got his affairs straightened out, he wished his daughter not to lose by the revocation of the deed of trust in her favor. While the will was made on November 24th, and the written agreement for the conveyance of the property on December 4th, and the deeds were not made until nearly a month afterwards, still it is perfectly manifest from the will that the will was written in contemplation that the composition with the creditors should be carried out, and it should read as speaking rather from that time than from the date of its execution, pursuant to section 4839, Ky. St. (Russell’s St. Sec. 3962): “A will shall be construed with reference to the real and personal estate com prised in it, to speak and take effect as if it had been executed immediately before the death of the testator unless a contrary intention shall appear by the will,”

In the contract of December 4th, it is provided that the conveyance to the trust company shall be upon trust that it shall collect all ehoses in action assigned to it, and sell so much of the land as may be necessary, and that, as soon as its debt was paid, all the residue of the property should be “the individual property of William Cornwall, Sr.,” and should be conveyed by the trust company to him. AYhen the testator speaks in the will of the event of the factory property again becoming “my property,” he evident*648ly had in mind the event of the trust company reconveying the property to him after the payment of his debt, as specified in this written contract. By tbe deed which he made to the trust company, it was provided that tbe deed was made ' 'to tbe end that the title to said entire property known as tbe factory property shall be vested in fee simple in said Louisville Trust Company.” At the time of bis death tbe title to tbe property Avas in tbe Louisville Trust Company,-. 'What he contemplated was that, if be and bis sons got tbe factory property back, be wished bis daughter to be placed where she was before be re\roked tbe deed of trust for her benefit; but be died without getting tbe property back. At bis death tbe title to tbe land was in tbe Louisville Trust Company, and all that be bad was an obligation on tbe part of tbe Louisville Trust Company to convey back to him tbe remainder of tbe property left after tbe payment of tbe debt, to tbe trust company. Tbe title to tbe factory property was not in him when be made bis will, and although tbe two sons conveyed to him their interest in it, this interest was charged with tbe debts of the firm which bad to be settled, and their conveyance to him Aras only made that be might convey tbe entire prop - erty to tbe trust company, so all these deeds should be read together; their evident purpose being merely to pass tbe title through him to tbe trust company, and not to vest any title in him, until tbe $60,000 was paid.

Taking the will as a whole, it leaves no doubt that the testator was equally devoted to all three of bis children. He bad not in mind giving one a preference over tbe others. His sole purpose, as exhibited by tbe whole instrument, was to treat them all alike and with exact justice. He did not intend that a *649sum equal to oue-third of the proceeds of the factory-property should be paid to his daughter out of his estate before the two sons received anything from the estate. The careful wording of the will to the effect that no advancements are to be charged, when read in connection with the words directing an equal division among the three children, forbids such a conclusion. The construction of a will which produces equality is. preferred to one that produces inequality, and it will not be presumed that the testator intended to prefer one of his children to others, unless this appears from a fair reading of the will. The whole wilt here shows a purpose on the part of the testato1’ to put all his children on equality without regard to what liad theretofore been received by each of them. To adopt the construction of the will urged by the daughter would be in effect to make the value of her one-third of the factory property a first charge upon his whole estate left after the payment of the debts, in the event the testator revoked the trust deed to her. That is not the event he had in mind. He had in mind the event of getting back his property and going on again with the business of Cornwall & Bro., as shown by the preceeding words of the will. The revocation of the trust to the daughter was only a step to vest the property in the trust company. The event he had in’ mind was the property revesting in him. It would then be his to devise. If at the date of the will he had revoked the deed of trust to his daughter and had stopped there, he would have had no interest in the factory property to devise to her, for his creditors would then have subjected the property to their claims. He had at that time no interest in the manufacture of soap and candles to devise, for he had assigned everything for the payment of his debts. All *650this part of the will must therefore be regarded as prospective and as made in contemplation of the composition with his creditors which he had in hand, and in view of a subsequent carrying on of his business after his debts were settled; but he died the following March, before his plans were carried out, and before the portion of the factory property then owned by his daughter became his property within the meaning of the will. We are therefore of opinion that the three children will take the estate equally under the will.

Judgment reversed and cause remanded for a judgment as above indicated.

Citation profile

How this case has been treated — in progress