82 Ky. 107 | Ky. Ct. App. | 1884
delivered the opinion of tiie court.
This was an action by the administrator of Washington B. Hancock, deceased, to ascertain his interest in
“That the party of the first part, the said Ball, in consideration of a promise heretofore made to the said Marion Sophia to convey the property hereinafter mentioned, to her, and for the further consideration of a. full, complete, and final settlement of all law suits, disputes, and demands of what character they may be, between the said Hancock and wife, a full relinquishment of which between the parties is hereby agreed upon, and is witnessed by this indenture, and for the-further consideration of one dollar.”
Then follows the grant and sale to Cosby of said lots, with a general description thereof, the deed concluding-in these words:
“Upon trust, nevertheless, that the said Cosby, his heirs, and assigns shall permit the said Hancock and the said Marion Sophia to remain in quiet and peaceable possession of said parcel of ground and the improvements thereon, and to talce the profits thereof to the use of the said Marion Sophia and her heirs, and upon*110 'this further trust that the said Cosby will, upon the ■ written request of the said Marion Sophia, join her in ■any conveyance to any person for any purpose of the whole, or any part of the described premises; the funds or proceeds arising from such sale or disposition to be used, invested, and disposed of as the said Marion •may direct, the said Cosby exercising no control over -the said premises and liable for no neglect. And also upon the further trust that the said Cosby, his heirs, and assigns will hold the said premises to the use — the •said Marion Sophia solely and separately during the joint lives of the said Marion Sophia and the said Hancock, subject to the direction of the said Marion Sophia as above directed; and from and immediately after •the death of said Washington Hancock, her husband as aforesaid, in case the said Marion Sophia should sur■vive him, then to the said Marion Sophia during her natural life, and after her death to the heirs of the said Washington Hancock; but in case the said Marion Sophia should die during the life-time of the said Hancock, then to the use of such persons for such \estates and changes as the said Marion Sophia by her last will and testament, in writing, or by any instrument of writing in the nature of or purporting to be •the last will and testament, executed in the presence of two witnesses, should direct, limit, or appoint, and in default thereof, then to the use of the children of the -said Hancock, their heirs, and assigns.”
They had only one son, John, by name, who died in 1870, after he became of age, and before either of them died, she made a will during the life-time of their son, -and devised two-thirds of the lots to him'for and during
It is contended that the son, John Hancock, took a vested remainder in the whole of the lots, subject to be •defeated by any disposition which his mother might make by last will, or by an instrument in the nature of last will, and that his father being his only heir was entitled to two-thi'rds of the lots by descent.
The statement of the consideration which is composed of a promise to convey the property to her to •settle controversies between her and her husband, and of one dollar, recites an agreement that must have been made before the execution of the deed. The recital being equivalent to an agreement to convey to her, we must construe the remainder of the instrument in view of that object, and so as to carry out the contract of the parties, unless a clear and manifest purpose not to •do so is exhibited by the language of the instrument itself. In Bank of Kentucky v. Vance, 4 Littell, 172, the court said: “Therecital of an agreement in a deed, is, in law, equivalent to an agreement made by the deed; and hence it is held, that' upon such recited agreement, an action of covenant will lie.” To the •same effect is the case of Bealle’s adm’r. v. Schoal’s ex., 1 Mass., 354. It is clear, therefore, that the agreed purpose of the deed was to invest Mrs. Hancock with "title to the property conveyed by it. In pursuance of that agreement she was invested with the right “to take the profits thereof to the use of” herself “and her heirs.” This unlimited right to the profits conferred upon her heirs as well as herself, if nothing else
In the case of Bowles v. Winchester, 13 Bush, p. 13, it is laid down that “ the devise to the wife of the rents and profits for life and then to her issue, was in substance a devise of the property itself.” “There is no foundation for the distinction (18 B. M., 329) attempted to be drawn between the land itself and its issues and profits.” See 4 Kent’s Com., p. 6.
The terms “her heirs,” indicate an intention to create a fee, and are words of limitation which mark out the extent of the estate conveyed.
But the use of the word “profits,” and the inheritable term “heirs,” are not the only provisions of the deed which evidence the purpose of conveying to her an absolute fee simple title.
She was also invested with the unrestricted power of alienation; the only condition to that power, if it be one, being that she should make a written request of the trustee to join her in the conveyance, and was given the right to the funds or proceeds arising from any sale she should make, “to be used, invested, or disposed of” as she “may direct.”
The trustee was excluded from control over the premises and exempted from any neglect. Thus she and her heirs were granted the profits; she was invested with
The deed is so strictly guarded in its terms that her husband had no power of control to any extent even over the rents and profits, and in every feature of it is to be seen the purpose of granting to her a fee simple estate, although these terms are not directly used. It has been often held that a devise, gift, or grant, generally or indefinitely, with power of disposition or absolute alienation, carries a fee, unless the first taker is vested with a life estate only, and the power of disposition is annexed to the remainder. 4 Kent, p. 319. In Jackson v. Robins, 16 Johnson, p. 588, the case was this: Lord Sterling, by his will, devised “all his real and personal estate whatsoever unto his wife Sarah, to hold the same to her, her executors, administrators, and assigns; but in case of her death without giving, devising, and bequeathing by will, or otherwise selling or assigning the said estate, or any part thereof, then he devised all such estate or all such parts thereof, as. should so remain unsold, undevised or unbequeathed,, unto his daughter, Catherine Duer.”
This limitation over was declared void, Chancellor Kent saying the power conferred upon the wife “is an attribute of ownership, and carries with it a fee.”
We might add authority after authority to this point but it is unnecessary, for the doctrine is, in the very nature of things, based upon the inconsistency and impossibility of creating antagonistic estates in the same property, in one person, by the same deed.
If an absolute estate be granted by deed, or the power to use, control, and dispose of the estate be unlimited, which is equivalent to a positive grant of the estate itself, there can neither be an executory power, remainder over, or other inconsistent estate superadded. In Ramsdell v. Ramsdell, 21 Maine, 288, the court say: “It has become the settled rulé of law that if the devisee or legatee have the right to dispose of the property at pleasure, the devise over is inoperative.” So it was held in Ide v. Ide, 5 Mass., 500; Hall v. Robinson, 3 James Eq., 348; Bull v. Kingston, 1 Merrivals, 314.
The court held the devise gave William absolute power of sale, and whether he sold or not he took a fee simple, and the devise over to George was void.
In the recent case of Howard v. Carrin, the Supreme Court U. S. (January 7, 1884), held where C was given an estate with power of disposition, that a provision that so much of the estate as C should not dispose of should, at his death, go to the testator’s nieces was void, notwithstanding C was requested not to diminish the estate further than might be necessary to his comfortable support.
In that case the authorities we have cited with others are referred to and followed. The main question, therefore, is based upon the power of alienation conferred upon Mrs. Hancock.
The attempt to limit the estate to her natural life was confined to the case of her survival of her husband, but in that event she still had the unrestricted power of alienation by any conveyance to any person she might choose to bargain with. So -that her powers of control,
Wherefore the judgment is reversed, and cause remanded for further proceedings consistent with this-opinion.