199 Ky. 121 | Ky. Ct. App. | 1923
.Opinion of the Court by
Reversing.
This is a proceeding under the declaratory judgment law of 1922, by Phillip Gr. Dickinson against Maryetta D. Bacon and others, children and heirs of Dr. J. S. Dick-, inson, for a construction of the terms of the will of Dr. Dickinson and a declaration of the rights of appellee Phillip Gr. Dickinson thereunder, especially that clause wherein the testator devised three tracts of land in Todd county to his son Phillip, who is appellee herein, concluding with the sentence, “If my son Phillip Gr. Dickinson should die without legitimate bodily heirs, the said land to revert back to my estate and be equally divided between my legal heirs. ’ ’
After reciting the purposes of the deed, that instrument in part reads:
‘ ‘ That the other parties to this conveyance have this day paid to the said party of the first part the sum of one thousand dollars ($1,000.00) cash, in consideration of which and other valuable consideration paid to and received by the said first party, and her son, of and from the other parties to this conveyance and in order to invest each of the said devisees, children of said testator, with title to the parcels of land respectively devised them by said will, and in order to fully identify said parcels of land, and in order to release and relieve all said lands and the whole of the estate of said testator, including said residuary estate left in trust as hereinbefore stated from any, every and all claim or claims of any and every kind and character direct' and indirect, present and future, vested or otherwise of the said first party, all of the said parties hereto, excepting the second parties have bargained and sold and do hereby sell, alien, grant and convey unto the said second party, Phillip Gr. Dickinson, his heirs and assigns forever the following described tracts of land in Todd county, Kentucky, described as follows:”
(Here follows a description of the three tracts of land devised to Phillip B. by his father).
‘ ‘ Being the same devised to the said Phillip Gr. Dickinson by the will of his father, Dr. J. S. Dickinson, dated August 11, 1909, of record in the office of Todd county court in Will Book ‘M,’ page 496.”
The habendum clause reads:
“To have and to hold all of said real estate with its appurtenances unto the said party of the second part (Phillip Gr. Dickinson), his heirs and assigns forever with covenant of. general warranty, releasing all rights of homestead and dower.”
By the same deed Phillip Gr. Dickinson and his wife conveyed to the other heirs the lands devised to them by their father and released all claim to any interest in the residuary estate. The prayer of the petition asked the court to adjudge that by the terms of the last will and testament of Dr. Dickinson his son Phillip Gr. was devised a perfect and indefeasible estate in and to the said three tracts of land; but if not, then that it be adjudged that, not having died without issue prior to his father’s death, the said attempted limitation on his title was ineffectual; or, if not, that it be adjudged that the said attempted limitation had relation only to the duration of the particular estate of five years, wherein some portions of said estate remained in trust, and that plaintiff, not having died without issue, during said period of time, his title became perfect and indefeasible; or, if not, then that it be adjudged that the effect of the said deed of partition and conveyance and settlement, hereinbefore set forth had the effect to invest plaintiff with such perfect indefeasible fee in all said lands, and free from any contingent remainder therein, belonging to, or going to the legal heirs of the testator, at any time, and free from any limitation wffiatever; and he prayed that his title to said lands be quieted against any and all the adverse claims of any and all the legal' heirs of testator, and all others, and that it be adjudged that he has a perfect indefeasible fee simple title to all said lands.
The defendants filed a general demurrer to-the petition which, after consideration, the court overruled. A copy of the will and of the deed referred to and relied upon in the petition were filed as a part thereof. No answer was filed by the defendants, or either one of them. The cause.being submitted for judgment the court held that the clause in the will reading: “If my son Phillip
We think the lower court was in error in holding that the devise to Phillip passed the fee absolute. He took a defeasible fee only under the will, as we understand and interpret the 9th section thereof. It was the intention no doubt of the testator to keep the property in the family — not allow it to pass to the heirs of his son Phillip through his mother. Phillip at that time had no children and the testator fearing that his son Phillip would never be a father and that the land which he devised to his son might, through the death of his other children, pass to heirs not his own, provided that in case Phillip died without leaving heirs of his body the said land so devised should revert to the estate of the testator and pass to his heirs. Of course this limitation or expression “dying without heirs of his body” related to the death of Phillip after the death of the testator, because the will speaks from the date of the death of the maker. It could not have referred, under any rule of construction known to us, to the death of Phillip before the death of his father, because the will did not take ef
The deed of date August 31, 1912, made between the heirs was sufficient in our judgment to divest Mrs. Bacon and the other children and the then heirs of Dr. Dickinson of all interest, present and future, reversionary or otherwise, which they, or any of them, had in and to the three tracts of land devised by their father to Phillip and to invest Phillip with the fee simple title to all of said three tracts of land insofar as these grantors may happen to be heirs of Dr. Dickinson at the death of Phillip, but no further. Who will be the heirs of Dr. Dickinson at Phillip’s death is unknown and unknowable until the happening of that event.- All the other children may die before Phillip; if so, the deed they made will not protect his title in case he dies without issue living, although their estates may be liable under the warranty. If the will had provided for the reversion of the land to the children instead of the heir of testator, the deed would be all suffidient. Beading as it does the estate of appellee Phillip G-. Dickinson is subject to revert to the heirs of
It follows from what has been said that the declaratory judgment of the lower court was and is erroneous and must be reversed for proceedings not inconsistent herewith.
Judgment reversed.