123 Ky. 775 | Ky. Ct. App. | 1906
Opinion by
Reversing.
We can do no better in the statement of the case than to adopt the very clear presentation made in the brief of counsel for appellee: This action was brought by the appellee, plaintiff below, to enforce a mortgage given by John Mason Brown upon his in-( terest in the Ellerslie tract of land in Fayette county; and the question presented for decision upon this appeal is whether his interest is one in fee simple, and held by him under the will of his grandmother, Mrs. Preston, and so liable to the mortgage debt, or whether it is an uncertain executory interest, held by him under the will of his mother,. Mrs. Mary O. Brown. The Ellerslie tract was owned by Robert Wickliffe, who devised it in trust for the use of his daughter,» Mrs. Preston, during her life, giving to her a power to appoint the same by will to the use of any of her children or descendants, and providing that in default of such appointment it should go to her heirs at law. Mrs. Preston, by her will, excercised this power by appointing the property to her six children — five
Robert Wickliffe, the great-grandfather of John Mason Brown, and whose will is first to be construed, provided thus, in the third clause of the second codicil of his will: “I do devise and give to my son-in-law, Wm. Preston, my lands and estates lying near the city of Lexington, between the Richmond and Winchester roads, called Ellerlsie and Scuffleton, which estates are composed of the old Ellerslie place derived by me from Mason, the lands adjacent thereto-acquired by me through conveyances from my late wife Mary O. Wickliffe, and a small tract acquired by me from Vaughns, and all of my lands adjacent or contiguous to the said tracts amounting altogether to 1,500 or 1,600 acres of land, to have and to hold the said Ellerslie, Scuffleton and -other lands to him, the said William Preston, his heirs and assigns in fee-forever, but upon these special confidences and trusts, viz.: (1) That .he will hold the same for the use and benefit of his wife, my daughter, Margaret WickliffePreston, together with rents, issues and profits thereof, for and during the full term and period of her natural life, and after her- death, to the use of any child or children or descendants of my said daughter, to whom she may by her last will and testament, or-an appnintxnent in the nature of a last will and testament, direct, limit or appoint said uses, and according-to the provisions, restrictions and conditions of said will; and if my said daughter should not make any such disposition by will or appointment in the nature»
The said Margaret W. Preston died a resident of Fayette county on February 2, 1898, having theretofore made and published her last will, which was on April 15, 1898, duly probated inJFayette county. Her will recites that ifwas made in virtue of the power given her by the will of her father, Eobert Wickliffe. She left surviving her six children, and no descendants of any deceased children. She devised the Ellerlie tract of land and all the residue of her real estate •to he divided equally among her six children, subject to certain charges against them, respectively, and further provided as follows: “The real estate given by this will to my children is given for and during their respective lives, and at the death of each shall pass to the heirs of his or her body‘living at such death, and in the event of there being no such heirs, then pass to my descendants; but each of the devisees shall have full power, by last will, to devise and dispose of the estate received under this will among such devisee’s
One of the six children of Mrs. Preston was Mary O. Brown, the mother of John Mason Brown. She died a resident of Jefferson county in. March, 1898, having theretofore, on January 8, 1895, made and published her will, which was duly probated in Jefferson county. • Mrs. Mary O. Brown left surviving her four children; John Mason Brown being one of the number. After certain specific legacies she devised to the Fidelity Trust & Safety Yault Company of Louisville all of her property and estate upon the following trust: ‘ ‘ The same shall be held by it, as trustee, and the net income thereof to the extent of $1,500. (fifteen hundred dollars) per annum shall be paid to each of my daughters, if it produces that much-income ; and after paying $1,500 to each daughter, then the residue of the net income to the amount of $500’ each, shall be paid to each of my sons per annum; if • the net income is more than sufficient for these purposes the surplus to be equally divided among all my living children. If one of my daughters shall marry she is thereafter to receive only one-fourth of the entire net income of my estate per annum and my other daughter so long as she shall remain unmarried shall receive of the residue of the net income of my estate $2,000 (two thousand) per annum, if there be enough of my net income to pay it; and of the residue of the net income, after paying the $2,000 to my unmarried daughter, the sum of $500 shall be paid to-my sons, if the net income is sufficient, and if there be a surplus beyond that it shall be equally divided and on the marriage of both daughters, I want each among my children to share alike. This trust shall continue as to each child during his or her life. Upon the death of the first of my children who die, one-fourth of the principal of my estate, shall be paid to his or
The question for decision, therefore, is, what estate has John Mason Brown, in the property devised? Is it controlled by his mother’s will, or does he take as purchaser under the will of his great grandfather? Section 2360, Ky. St. 1903, reads: “The absolute power of alienation shall not be suspended, by any limitation or condition whatever, for a longer period than during the continuance of a life or lives in being at the creation of the estate, and twenty-one years and ten months thereafter.” Under this statute, find under the rule against the creation of perpetuities, the validity of any future estate depends upon the certainty of its vesting within the prescribed period, and this certainty must exist at the time of the creation of the estate. It follows that the estate will be void when this certainty does not exist at the time of its creation, although subsequent events so happen that the estate could vest after that period. It is immaterial Whether Mrs. Preston had children born after her father ’>s death. The fact remains that at his death, Mrs. Preston being alive, it was possible that she might have had children born alive thereafter who could have survived her, and who would have taken as members of the class represented by her children. Such after-born child would, therefore, have been one
To uphold the construction of the will contended for by appellee, and given to it by the circuit court, would be to hold an estate could be created by a will, taking effect at the death of the testator in behalf of one not then in existence, for his life, then to his children for life, with remainder to the latter’s children. The power of appointment given to the daughter by Bobert Wickliffe could not be used to extend the estate created by his will, or to postpone the vesting of the fee for a longer period than Wickliffe himself could have done. The effect of an execution of á power of appointment is to make such act that of the original testator in effect. To hold it valid would be to say that the testator, though restricted by the statute in the capacity to create an estate beyond a life or lives in being and 21 years and 10 months thereafter, could, by a power of appointment,- vest in some other person the ability to further extend the limitation, so as to defeat the purpose of the statute against perpetuities. This we hold would be invalid. We conclude that the will of Mrs. Preston was valid only to the extent that it exercised the appointment allowed by her father’s will; that is, in designating which of her children took and in what portions after her own d-ea^h. But the attempted limitation of their estate to a life estate, with remainder to their children, was void. Hence Mrs. Mary O. Brown took the fee to the property devised to her. She was competent, then, to devise same in her own right. The estate created by her will in her son John Mason Brown is not such as that the title to the land could be disposed of by him by way of mortgage.