123 Ky. 235 | Ky. Ct. App. | 1906
Opinion op the Court by
Reversing.
This is an appeal from a judgment of the Bourbon circuit court construing a deed executed by Jefferson A. Bryan to his son, James Baxter Bryan, March 4, 1896, whereby the latter was conveyed a valuable tract of Bourbon county land. The granting clause of the deed was as follows; “For and in consideration of the love and affection the first party has and enter
The two leading cases in this State on this subject are Bohon v. Bohon, 78 Ky.408, and Coots v. Yewell, 95 Ky. 367, 16 Ky. L. R. 2; 25 S. W. 597, 26 S. W. 179. In the first it was held that an estate in fee may be made to pass out of the grantor so as to remain in abeyance pending the existence of the particular estate. Therefore a conveyance to the grantee for life and to their children forever, reserving in the grantor the right to control the property during her life, vested no interest in the heirs of the grantor upon her death before the termination of the particular estate. In Coots v. Yewell, supra, it was held that under a conveyance to one for life, remainder to his children, heirs, and legal representatives, the life tenant not having any children, the fee remained in the grantor, and upon his death vested in his heirs, and a conveyance from them to the life tenant vested in him the fee subject to be defeated by his having children. That the title did? not remain in abeyance ready to vest in whoever might be the heirs of the grantor at the time of the death of the life tenant, and therefore, a brother of the life tenant having united in the conveyance to him and afterwards died before he died, the children of that brother was estopped by his conveyance to claim any interest in the lands as they took from their father and not from their grandfather. Though apparently in conflict with Bohon v. Bohon, the opinion in Coots v Yewell did not overrule the former or refer to it. This was probably due to some real or supposed difference in the two deeds. But be that as it may, we are of opinion that the case at bar is controlled by the rule announced in Coots v. Yewell. In that case, as in this, there was a contingent remainder in the children of the life tenant supported by the life estate, in that case, as in this, no children were born to the
A concise statement of the rule, supra, is announced in Fearne on Remainders, vol. — , p. 351, as follows: “Where a remainder of inheritance is limited in contingency by way of use or by devise, the inheritance in the meantime, if not otherwise disposed of, remains in the grantor and his heirs, or in the heirs of the testator until the contingency happens to take it out of them.” A more elaborate discussion of the question is found in volume 2, p. 20, of the same work. This doctrine is also approved by Judge Kent. Kent’s Com. vol. 4, p. 257. We think the case at bar comes clearly within this rule. Jefferson A. Bryan, the grantor, by the deed exhibited, conveyed to hi« infant son, James Baxter Bryan, a life estate in the land,
Wherefore the judgment is reversed.