I am unable to agree with the majority of the Court and as this is a four to three decision it appears appropriate that the views of the minority should be expressed.
The will before us for construction was written more than a quarter of a century ago and there is nothing in it to show that the testator ever thought of the particular situation that now confronts this Court, or ever had any actual fixed purpose as to such a situation. It is therefore evident that the task of ascertaining the testator's intention from his will is not only difficult but one so delicate that should there be any doubt in the minds of the Court, we should not construe the paper so as to enrich one of his daughters at the expense of the other when the entire will strongly evidences an intention to have them share equally in his estate.
The will shows clearly the testator considered his two daughters jointly (except in the case of survivorship), and he never intended that one should receive greater benefits from his estate than the other. The only place in the will where he used the term "either or both" was in Item VII, which related to the time of remarriage of his widow and the refurnishing of the home. Both of these events have long since occurred. In addition, since the testator had in mind the possible survivorship of one daughter, the use of the term "either" may certainly be construed to anticipate the prior death of the other.
The other two sections of the will which have been quoted in the majority opinion refer to the daughters jointly except where one survives the other. Thus in Paragraph A, Item X, the testator directs the trustee to permit the use of the home:
"so long as * * * my said daughters * * * shall live there and occupy it as a home." (My italics.)
In Paragraph B of Item X, the testator states:
"In the event * * * my said daughters * * * should not decide to live in said residence, my trustee shall sell * * *." (My italics.) *Page 694
Further along in the same paragraph the testator refers to "enabling them to live elsewhere," and ends with the words "maintain a common home." The majority concluded that the trustee only had the power to sell, regardless of occupancy, when both daughters did not desire to live in the residence. This reasoning ignores the fact that the testator anticipated the joint use of the home by both daughters, that the "daughers" are not living there, and that a common home cannot exist without the consent of both parties.
Other parts of the will show clearly the testator intended both of his daughters to share the benefits of his estate in positive equality. Neither one is favored in any respect. Obviously, the testator did not foresee the present development, and did not in specific language provide for it. Yet it is manifest he intended his two daughters to share equally in the use and income of his estate, and joint use of the residence fits perfectly into this general objective. When that joint use terminated because of its undesirability, impracticability, or inconvenience, one of the testator's principal purposes could no longer be carried out. In such a situation his overall intention controls the construction of the provision expressly directing the trustee to sell the property. In this case it is not even necessary to extend the trust to fulfill more perfectly the intention of the testator, even though the equities of the case would perhaps justify it. See Zinsmeister's Trustee v. Long et al., 250 Ky. 50,61 S.W.2d 887.
Considering the surrounding circumstances, and particularly the station in life of these parties, it appears no longer feasible for the two daughters to occupy the residence together. It is a three-bedroom house, and though apparently of substantial proportions, the two families, consisting of four adults and three children, could not conveniently use it as a single home. The majority opinion permitting this residence to be occupied by one daughter at the expense of the other not only violates the testator's clear intention to treat his two daughters alike and equal, but it puts a premium on the unreasonable tenacity of the younger daughter to remain in the home to the disadvantage of her older sister, when it becomes next to unbearable for both their families to occupy this three-bedroom residence. *Page 695
Let us suppose each daughter had five children. Then the majority opinion decides that the older daughter must submit to the inconvenience, if not indignity, of fourteen people of wealth and refinement living in a three-bedroom home, or else forfeit a large sum because the younger daughter has the temerity to occupy the home in the circumstances and oust her more considerate and sensitive sister.
To my mind there is such a thing as reasonableness and fairness in construing a will in an attempt to ascertain the intent of the testator where the whole instrument evidences a purpose on his part to treat his two daughters equally and alike. Especially is this true where the will was written many years ago and a condition has arisen which the writer of the paper never contemplated.
The Chancellor, whose most excellent opinion shows a careful consideration of the case, properly determined the trustee should sell the residence. My thoughts coincide with his rather than with the majority opinion.
For the reasons given I most respectfully dissent. I am authorized to say that Judges Latimer and Knight join in this dissent.