
    CASE 6. — APPLICATION BY. GRACE R. BRADSHAW POR A RULE AGAINST H. C. BAKER, CIRCUIT JUDGE, TWENTY-NINTH DISTRICT, TO ENTER A CERTAIN JUDGMENT.
    February 16.
    Bradshaw v. Baker, Circuit Judge.
    Motion for the rule considered by the C'onrt of Appeals and rule refused.
    Appeal ,and Error — Mandate and Proceedings in Lower Court.— in an action by a widow for the construction of her deceased husband’s will, the circuit court held that plaintiff might dis- .. pose of the estate, if necessary for her support. On approval it was held that she could only sell to pay charges against the estate. Thereupon a judgment setting aside so much ■of the original judgment as held plaintiff entitled to use the principal for her support was entered by the circuit court, which further adjudged that plaintiff took only a life estate, with the duty to preserve the principal intact. Held, That the judgment substantially complied with the opinion of the-appellate court.
    N. H. W. AARON for appellant.
    DYING WITHOUT ISSUE.
    The court properly construed this expression: “But should our said daughter, Grace Butler Bradshaw, die without issue, then what remains of my estate shall be divided into two equal parts, etc.,” and adjudged that the dying without issue had reference to her death in the life-time of the life tenant, and that she, if living at the death of Mrs. Butler, took the property absolutely.
    The rule of.construction in such cases is too well settled to need comment. In the case of Harvey, etc., v. Bell, etc., 118 Ky., 521, this court reviewed all of the authorities and approving this construction: “Where an estate is devised to one for life, with remainder to another, and, if the remainderman die without children or issue, then to a third person, the rule is that the words ‘Dying without children or issue’ are restricted to the death of the .remainderman before the termination of! the particular estate.” To the same effect are Bimey v. Richardson, 35 Ky. 424; Wren'v. Haynes, 59 Ky. 129; Pool v. Benning, 48 Ky. 623; Mercantile Bank v. Ballard, 83 Ky. 481; Ferguson v. Thomason, 87 Ky. 519; Dickison v. Ogden, 89 Ky. 162; Pruitt v. Holland, 92 Ky. 641; Lewis v. Shropshire, 68 S. W. 426; Baxter v. Isaacs, 71 S. W. 907.
    Wherefore, we ask a reversal of the judgment of the lower court adjudging to Mrs. Butler the $1,500 with interest on same, and a construction of the will adjudging to Mrs. Butler a life estate in the property devised to her and that appellant has a remainder interest in this same estate, and denying to appellee the right to consume o,r encroach upon the remainder interest of appellant for 'any purpose.
    JAMES GARNETT •and- W. W. JONES for appellee.
    The testator recognizes in his wife a helpmate and a partner in the accumulation of his estate, shows a desire to repay his brothers and sisters for the aid given him in his 'earlier days and a desire to provide for his adopted daughter during her life and for her issue, if any, but the leading general purpose manifested is that his property shall npt pass beyond his blood, that of his wife’s and adopted daughter’s.
    AUTHORITIES CITED.
    1. Limitation statute does not apply to Mrs. Butler’s claim. (Biggerstaff’s Admr. v. Same, 19 Ky. Law Rep. 371.)
    2. Appellee’s claim was not extinguished by the devise to her. (Lisle v. Stribbles, 92 Ky. 304; Cloud and Wife v. Clinkenbeard, 8 B. M. 398.
    3. The construction placed upon the will of testator by the circuit court was more favorable to appellant than warranted by law. (McCullough’s Admr. v. Anderson, 90 Ky. 128; Coats’ Admr. v. L. & N. R..R., 92 Ky. 268.
   Opinion of the Court by

Chief Justice Settle.

T'lie plaintiff, Grace B. Bradshaw, asks that this court issue a rule against the defendant, H. C. Baker, judge of the Twenty-Ninth judicial district of Kentucky, requiring him to show cause why he should not enter in the ease of Bettie W. Butler v. Grace B. Bradshaw and Others, pending in the Adair circuit court, a judgment tendered in that court by plaintiff, Bradshaw, and which, she insists, conforms to and is required by the opinion and mandate of this court in the case of Bradshaw v. Butler, appealed from the Adair circuit court and decided by this court May 29, 1908. See 110 S. W. 420, 33 Ky. Law Rep. 531.

The action was brought by Bettie' W. Butler to recover of the estate of her late husband, John W. Butler, the value of certain bonds and coupons she claimed to have had in his hands at the time of his death, and also to obtain a construction of his will. It was alleged1, in the petition that by the will her husband “devised his brothers and sisters the sumí of $5,000, and to the plaintiff, Bettie W. Butler, all the rest of his real and personal estate, with the power to sell, use, and dispose of it as she might see fit, during her lifetime, and that she was appointed the executrix thereof, and given full power in her individual capacity to sell and convey any and all of the estate left by the said decedent, John W. Butler.” The circuit court, in construing the will as to the power of the wife to dispose of the real estate, adjudged that “the will does not give Mrs. Butler an absolute or capricious control of the estate, such as empowers her to sell, use, and dispose of it, as she may see fit during her life, as is claimed in the petition. The testator, however, -evidently intended.that she should have a decent support suitable to her condition in life, and with this limitation, it would seem, she could control it. and touch upon the principal, if necessary for her support.” On the appeal this court held that “the power given by the fourth and fifth clauses of the will was solely for the purpose of enabling Mrs. Butler to sell the property for the purpose of paying the debts and other charges against the estate.” The effect of this was to restrict her power to sell the real estate to the [payment of debts and charges against the e«b"+“ of the testator, and' consequently to nullify and reverse that part of the judgment of the circuit court which had given her the power to sell it for her support.

Following the filing of the opinion and mandate in the circuit court, the following judgment was entered by that court: “It is now ordered and adjudged, in conformity with the opinion and .mandate of the Court of Appeals, that so much of tL « judgment appealed from as adjudged Bettie W. Butler to ’-“cover of the estate of John W. Butler $1,500, with interest from 21st day of January, 1897, and that, in addition to the income of the estate, she is entitled to use the principal, if necessary for her reasonable support and comfort, be and the same is now set aside. It is further adjudged that said Bettie W. Butler is not entitled to use any part of the principal of Ms said estate for her support, and that she only takes a life estate therein under said will, with a right to the income arising therefrom, with the duty to preserve the principal intact. In other respects the former judgment stands as the judgment of this court. * * *”

In terms, as in meaning, the foregoing judgment confines Mrs. Butler to the use of the income arising from the husband’s real and personal estate during her life, and, as that part of the original judgment permitting her to sell the real estate merely for payment of debts and charges against the estate was unaffected by the reversal and has not been set aside, the power there given to Mrs. Butler to sell, together with the provisions of the last judgment preventing her from encroaching upon the principal of the estate, and requiring her to preserve the principal intact, constitute such a judgment as substantially conforms to the opinion and mandate of this court.

The circuit court might with propriety have entered the judgment tendered by the plaintiff, G-raee B. Bradshaw; but, as we cannot say the one entered does not substantially comply with the opinion and mandate of this court, no cause is shown for the rule asked.

It is therefore refused.  