Opinion
Decided December 7, 1926.
Appeal from Owen Circuit Court.
J.W. CAMMACK and TURNER TURNER for appellants.
M.L. MARSHALL for appellees.
Affirming.
The sole question involved in this appeal is the validity of the residuary clause of the will of Hanna Christie Violett, which was holographic and written and subscribed by her on August 27, 1920, she having died in April, 1924, a resident of Owen county, following which her will was duly probated by the county court of that county. Testatrix had no children and left surviving her no heirs or distributees, except her husband, and some nieces and nephews, who were the surviving children of a deceased sister. She made some special devises to them and other persons, and then wrote the residuary clause in contest, which is in these words: "Then what money is left I want it to go to the orphans' homes of Kentucky."
By an amended petition the Louisville Baptist Orphans' Home was made a party and it filed its separate answer and alleged that the testatrix when she made her will had it in mind and, therefore, intended for it to receive the residuary portion of her estate disposed of by the residuary clause of her will. The depositions of two members of the local Baptist congregation at Campbellsburg, Kentucky, where testatrix resided, were taken, and they proved that testatrix was a devout member of that congregation and that she had stated prior to her death and about the time the will was written that she intended to devise her property to the Baptist Orphans' Home. Upon submission of the cause the court adjudged "That there is no ambiguity in the will of Hanna Christie Violett, and that the administrator with the will annexed shall pay the residue of the estate of said Hanna Christie Violett, to all of the existing orphans' homes of the state of Kentucky at the date of death of testatrix, to-wit, April, 1924," and to reverse that judgment plaintiffs, composed of the administrator with the will annexed and the nieces and nephews of testatrix, prosecute this appeal.
It is insisted that the inserted residuary clause is void for uncertainty and for that reason it should be held that the testatrix died intestate as to all the property to which it applied, but we cannot agree with that contention. It will be observed that there is no intricate question here as to the uncertainty of beneficiaries in a charitable trust, nor any uncertainty as to the trustees or administrators of the trust, such as was involved in the cases of Kratz v. Slaughter's Executor, 185 Ky. 256; Goldberg v. Home Missions of the Presbyterian Church in the United States, 197 Ky. 724; State Bank Trust Company v. Patridge, 198 Ky. 403, and other like ones. Nor is there any indefiniteness as to the object and purposes of the devise. We are, therefore, relieved of the task of discussing any such questions, or of determining the applicable law to the facts presenting any such questions for the manifest reason that there exist here no such facts. The involved language is short, pointed and unambiguous. It specifically and clearly designates the objects of the devise, which are: "The orphans' homes of Kentucky," be they few or many. The beneficiaries of the charity are the occupants of those homes. Each of such homes within the state at the time of the death of the testatrix at once became vested with its pro rata share of the total devise, be it small or large; and being the administrator or trustee of its portion of the devise it was and is its duty to use it for the benefit of its beneficiaries who are the inmates of that particular home.
Nothing appears in the language of the testatrix in framing her residuary clause, nor in any other part of the will, to indicate that the shares of each orphans' home should be measured by the number of occupants, or that the division should be made in any other manner than equally among all orphans' homes in the Commonwealth, and the only fact, therefore, furnishing any support for the argument that the devise here is invalid for uncertainty does not arise because of any ambiguity in the will itself, but on the collateral facts that there are an indefinite number of orphans' homes in the Commonwealth and the consequent difficulty in ascertaining them; but we are cited to no case, nor have we been able to find one, where such an objection rendered the will invalid on the ground of indefiniteness. Suppose, by way of illustration, that a testator should devise his property equally and per capita among all of his surviving children, grandchildren and great-grandchildren, could it be successfully contended that the devise was void because there was a large number of devisees composing the designated classes and they were scattered over a broad territory and difficult of location? We think not, and the instant case differs nowise from the supposed one. We, therefore, conclude that the contention of appellants is without merit and can not be sustained.
We also concur in the judgment of the trial court that this is not a case wherein extrinsic testimony is admissible for the purpose of ascertaining the intention of the testatrix. Such testimony is never admissible except to explain certain classes of indefinite expressions contained in the will, as will be seen by a reference to the cases of Eichorn v. Morat, 175 Ky. 80; Parrott v. Crosby, 179 Ky. 658, and others cited in those opinions; or to remove a latent ambiguity, as is shown in the cases of Mitchell v. Walker, 17 B. M. 66; Day v. Asher, 141 Ky. 468, and Virginia I. C. C. Co. v. Combs, 165 Ky. 456. Since, therefore, there is no ambiguity in the residuary clause here involved, we need not enter into a discussion of the established rules as to when such testimony may or may not be heard for it is a universal principle that where there is no ambiguity arising from the language of the will as to the subjects of devise, or the objects thereof, extrinsic testimony is not admissible for the purpose of showing that it was the intention of the testator to refer to a different object than the one named in the will, or to point out a particular member or members of a class mentioned in the will as the one or ones exclusively intended by the testator as his beneficiaries.
It is, therefore, clear that the judgment appealed from was and is proper, and it is affirmed.