William Stotts v. Samuel Cundiff, et al., Pulaski, 1877

William Stotts v. Samuel Cundiff, et al.

COURT OF APPEALS OF KENTUCKY

9 Ky. Op. 291; 1877 Ky. LEXIS 168

January 24, 1877, Decided

PRIOR HISTORY:   [**1]  APPEAL FROM PULASKI CIRCUIT COURT. 

DISPOSITION: Judgment affirmed. 

COUNSEL: W. H. Petters, A. J. James, for appellant.

T. Z. Morrow, for appellees. 

JUDGES: Judge Elliott. 

OPINION BY: Elliott 

OPINION

 [*291]  Opinion by Judge Elliott:

On the 16th of June, 1872, M. V. Cundiff made and published the following last will and testament, to wit: "I, M. V. Cundiff, being of sound mind and disposing memory, knowing the uncertainty of life and the certainty of death, make this my last will and testament: After the discharge of all my just debts I want all of my real and personal property to go to my wife, Louisa Cundiff, her natural life, to be used and disposed of as she may see fit."

This will was probated in the Pulaski County Court in a few days after it was made; and shortly after the death of the testator the principal devisee, Louisa Cundiff, departed this life. The administrators of M. V. Cundiff sued the administrators of Louisa Cundiff for a settlement of the estate of M. V. Cundiff, and charging that all the personal property of M. V. Cundiff which had not been disposed of in her lifetime by Mrs. Louisa Cundiff belonged to them as administrators of M. V. Cundiff, and asked for judgment, etc.

During [**2]  the progress of this suit the present appellant filed his petition and asked to be made a party, and in his answer alleges that he is the only brother of Louisa Cundiff, who died without children, and as such he is entitled to all the estate bequeathed and devised to her by her husband, M. V. Cundiff. He also charges that his sister, Mrs. Louisa Cundiff, was made the absolute owner of the property of her deceased husband by virtue of his will, and that on her death it descended to him as next of kin.

The will of M. V. Cundiff limits the property devised to the life  [*292]  of his wife, with power to dispose thereof as she might, whilst living, see fit, and as she failed to exercise the power by disposing of it before her death we are of opinion that at the death of Mrs. Cundiff the estate of M. V. Cundiff descended to his heirs, subject to the payment of his debts.

Wherefore the judgment is affirmed.