199 Ky. 268 | Ky. Ct. App. | 1923
Opinion op the Court by
— Reversing.
Elijah J. Allen died testate and a resident of Fayette county. He left surviving Mm as Ms only, heirs and immediate devisees the appellant and plaintiff below, Nellie Allen Cammack, a daughter, and Claude J. Allen, a son. The latter had a daughter, the appellee and defendant below, Elma M. Allen.
The fifth clause of the will is the only one involved in this litigation, and it says: “It is my will that my home at 361 South Broadway, Lexington, Kentucky, as an estate be divided equally between my daughter, Nellie Allen Cammack, and my son Claude J. Allen. The share of Nellie Cammack is to be in her sole right and in. fee •simple. The share of Claude J. Allen is to be held by him, he receiving the rents and benefits therefrom during Ms natural life, free from any debt he may then- owe or thereafter create, and at his death the same shall go -to Ms daughter Elma M. Allen, for her sole benefit, free from any control or interest of any husband she may have, and free from any debt she may then owe or thereafter create, and if she die without descendants, or if during her life she permit said property to be sold, or if she attempt to sell her interest therein or to lease same for a period of more than two years, then and in either of said events, her interest in said property and the title therein shall at once pass to her brothers and sisters and their descendants, and no devisee or other person shall have any right to cause a sale of said property during her lifetime for divis
Mrs. Gamma ck and her husband filed this equity action in the Fayette circuit court to procure a sale of. the property devised by that clause of testator’s will under subsection 2 of section 490 of the Civil Code of Practice for the purposes of division and in the petition alleged that the property could not be divided in kind and that it was necessary to sell it for that purpose and that it was occupied by the defendants, Claude J. Allen and his daughter Elma M. Allen, as a residence and that the stipulated rental to which plaintiff was entitled under the will was insufficient to pay her part of the taxes, insurance, upkeep and other fixed and necessary expenses for the maintenance of the property. A copy of the will was filed as an exhibit with the petition, to which the court sustained a demurrer and plaintiffs declining to plead further their petition was dismissed, from which judgment they prosecute this appeal.
Whether the court in sustaining the demurrer was of the opinion that a sale of the property for the purposes of division could not be ordered because forbidden by the quoted clause of the will, or because the title was not held in the manner set out in the provisions of the Code upon which the right to maintain the action was based, we are not informed, but we are convinced that neither of them furnished- any legal ground for denying the relief sought and that the court erred in sustaining the demurrer to the petition, and that too if it be conceded that the sale for the purposes contemplated could be prevented by the creator of the title in his deed or his will -as is true with reference to sales under subsections 3, 4 -and 5 of section 489 and Section 491, as is expressly provided by section 492 of the Code. So that, without discussion we will pass that preliminary question and at once proceed to a consideration and determination of the other tw'o.
• It is conceded, and which is a fact, that the will devised in praesenti an -absolute and unconditional fee simple title in one-half of the real estate involved to Mrs. Cammack. Her brother, Claude J. Allen, was given a life interest in the other undivided one-half with remainder to his daughter, Elma M. Allen, but which is encumbered with conditions subsequent rendering her
The next question is, may one who has a presently vested fee title to an undivided interest in land with the present right of possession maintain an action to sell it for the purposes of division under subsection 2 of section 490 of the Code, which requires, among other things, as a condition precedent to the relief that “the estate be in possession?”- In other words, does the fact that the fee in one or more of the shares is preceded by a particular estate and not extending to the whole with the right of joint possession in the owner or owners thereby postponing the right of possession by the remaindermen, destroy the joint possession rendered necessary by the Code in order to procure the sale for division purposes? To undertake to review each case -that has been before this court dealing with the question, or to rehearse their facts and point out the differences -between them would .not only carry this opinion beyond proper limits but would impose too -great a burden upon us and unnecessarily consume the time demanded by other litigants whose' claims are pressing upon us for determination. Suffice it to say that the opinions are not' altogether harmonious. In Dineen v. Hall, 112 Ky. 273, it was held that an action similar to this one could not be maintained under the provisions of the section of the code^ supra, where the possession was held jointly by the owner of .the fee of a part of the land and by life tenants of another part or parts, the fee in remainder to those parts being held by others. That case followed and was bottomed on the opinions in the cases of Malone v. Conn., 95 Ky. 93, and Swearingen v. Abbott, 99 Ky. 271. The opinion in the Malone case was not an authority under the facts of the Dineen case, since there existed a life tenancy in the whole of the property in the Malone case, which clearly was not such a joint possession of the title as authorized a sale for division under section 490. The Swearingen case seems to be in point and supported the holding in the Dineen case, but the latter was expressly overruled by this court in the case of Atherton v. Warren, 120 Ky. 151, In the sub
The facts of this case forcibly illustrate the wisdom of the interpretation of the section made by the Atherton opinion. It is alleged and admitted by the demurrer that the rental provided in the will that should be paid by the tenant occupying the jointly owned premises is entirely insufficient to pay the fixed and necessary expenses for its maintenance, and that plaintiff is sustaining an annual loss by reason of her ownership of the property, and unless she can maintain this action she will sustain an annual loss throughout the life of her niece, or that of her brother, for no other reason than that she is the owner in fee with the right to immediate possession to a one-half undivided interest in the property. Surely the legislature never contemplated the fastening of such a perpetual burden upon the owner of such an undivided
It is our conclusion, therefore, that for the reasons stated the court erred in sustaining defendants ’ demurrer to the petition and in dismissing it, and because thereof the judgment is reversed with directions to set.it aside and to overrule the demurrer, and for proceedings consistent with this opinion.