I concur in the reversal and, in doing so, give full effect to every provision in the will.
The provisions of the will fall within long-settled law. It is elementary that, by will, an estate in fee may be devised subject to a specified conditional executory defeasance, and that such an estate is one *Page 406 in fee because it will last forever if the specified ground of defeasance is discharged. The will devised the estate in fee with a conditional determinable limitation or possibility of defeasance and not an estate upon condition.
In Elkins v. Thompson, 155 Ky. 91 (159 S.W. 617), a mother, by will, devised and bequeathed to her son, Isaac, an undivided one-half of her real estate with the provision that, if Isaac died without leaving "heirs of his body," that portion, devised to him, should vest in her son John, as trustee, for the use and benefit of John's wife and children. The court held that Isaac took a defeasible fee; the fee to be defeated only by Isaac dying without issue.
In the case at bar, the devisee died leaving children and, therefore, there was no defeasance of the estate in fee devised by the will.
FEAD, C.J., and NORTH and BUTZEL, JJ., concurred with WIEST, J. *Page 407