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88 Ky. 125

Mitchell v. Simpson

Court of Appeals of Kentucky

Decided January 15, 1889

Court of Appeals of Kentucky · decided 1889-01-15

Case 17 — PETITION EQUITY — APPEAL PROM BOURBON CIRCUIT COURT. A devise to a person “ and her bodily heirs ” of a tract of land, and a devise of another tract “to dispose of as she wishes,” gives a life estate in the first tract, and an absolute fee in the second. “ Bodily-heirs” in such connection is used in the sense of children.

Good law ✅— No negative treatment on recordhow we know

Decided 1889-01-15

How this case has been cited

Cited by 12 later decisions — most recently May 1925

12 state decisions

4018891890190019101920decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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JUDGE BENNETT

¶1delivered the opinion op the court.

¶2The sole question in the case is, what is the proper construction of the third clause of Jessie Hall’s will, which reads as follows: u I give to my daughter, Anna Simpson, one hundred and sixty acres of land lying in and around Centerville, Ky. Said land is allotted to her and valued at fifty dollars per acre. I also will her two hundred acres of land in Scott county, Ky., off of what is known as sheep farm. Said land is allotted and valued to her at eighteen dollars and fifty cents *126per acre. The said land is willed to my daughter and her bodily heirs, except the two hundred acres in Scott county, Ky., which she is to have the right to dispose of as she wishes.”

¶3The fourth clause of the will contains a devise to his daughter, Paulina Henry, in_which is this language; “Said lands I will to my daughter, Paulina, and her bodily heirs, excepting the last two named tracts, which she may sell if she wishes.”

¶4The estate which he devises to his son, James P. Hall, is devised to him absolutely.

¶5It is well settled that the words “heirs of the body,” “heirs lawfully begotten of the body,” and other similar- expressions, are appropriate words of limitation, and must be construed as creating an estate tail, which, by our statute, is converted into a fee simple, unless, from the entire will, it reasonably appears that the testator used said words, not in their technical sense, but as synonymous with the word “ children.” If said words are used in the latter sense, then they are construed as words of purchase, and not in the technical sense as words of limitation, which are construed by our statute as conveying a title in fee to the immediate devisee.

¶6In construing the language of this will, it appears, at first blush, that the testator was endeavoring to create a life estate in his daughter, Mrs. Simpson, with remainder to her children, in the land lying around Centerville, and that he used the words “her bodily heirs” as synonymous with the word “children,” as expressive of that intention.

¶7The question in the case of Righter v. Forrester, *1271 Bush, 278, arose on the construction of a will similar to this in the particulars above mentioned, in which, it was held that the words “bodily heirs” were used by the testator in the popular sense of children, and that they took under the will as purchasers. Said case clearly distinguishes the case at bar from the case of Johnson v. Johnson, 2 Met., 331.

¶8We think that the words “ bodily heirs ” were used by the testator, Hall, in the sense of children, and' that Mrs. Simpson took a life estate in the land lying around Centerville, and her children took a remainder interest therein.

¶9The judgment of the lower court sustaining the demurrer to the appellant’s answer is reversed, and the case is remanded for further proceedings consistent, with this opinion.

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