Opinion by
Affirming.
In the year 1828, Gen. Green Clay, a resident of Madison county, Ky., made his last will and testament ; so much of which as is pertinent to a discussion of the issue involved on this appeal being as follows: “I give to my son, Sidney Payne Clay, as trustee, the fee simple‘of the tract of land on which I live, containing about 2,000 acres, * * * upon the following trust, to-wit: That he permit my son, Cassius Marcellus Clay, to use, occupy and enjoy said tract of land during his natural life, and at his death to convey said estate to his children. But should my son, Cassius, die without issue, the land shall be conveyed to my son, Brutus, if living,” etc. The proceeds of the sale of an interest in 450 acres of the 2,000-acre tract named in the will is the subject of this controversy.
At the time of his death in 1903, Cassius Marcellus Clay left, surviving him, five children (the appellant, Mary B. Clay, being one of them); another child, Green Clay, having died without issue several years before. In the year 1876 the six children made and executed the following deed: “This indenture made this third day of January in the year 1876 between Green Clay, of the first part, Brutus J. Clay, Jr., of the second part, Mary C. Herrick, of the third part, James Bennett and Sallie Bennett, his wife, of the fourth part, Laura Clay, of the fifth part, and Annie Clay, of the sixth part, witnesseth: Whereas the above six parties are jointly entitled to a contingent remainder upon and after the life estate of Cassius M. Clay, of whom said six parties are the children,
It is contended by the appellee that Green Clay took, under his'grandfather’s (Gen. Green Clay’s) will, a vested remainder in the land, and therefore was authorized to sell it, and could convey a good title to the purchaser. In our opinion, by the will of Gen. Green Clay, the dry legal title to the land passed to the trustee, Sidney Payne Clay; the life estate, or use, to Cassius Mareellus Clay; and the equitable fee vested in the children of the latter as
In view of this construction of the will, it follows, that, when Green Clay conveyed a sixth interest in the land to Louney Clay, he held an interest therein which was the subject of a sale; but the purchaser took it subject to be deprived thereof in the event his vendor died before the life tenant, his father, which event actually happened, and, as appellee therefore received and owns no interest in the land or its proceeds by his purchase from Louney Clay, his action to recover the fund sued for should be dismissed, unless the appellant, by her deed to Green Clay in 1876, is estopped from claiming and holding it. By the deed in question, she and her five brothers and sisters conveyed to each other, in consideration of mutual grants and releases, their rights or interests in the other’s one-sixth interests, so that .each should hold his or her one-sixth interest in the tract of land free from all rights or contingencies of the others, and each warranted the title of the others against himself or herself in the usual form. It is true, these children, by this deed or other instrument, did not, and could not, avoid or prevent the defeasance provided in the will of Gen. Green Clay; but, in our opinion, the appellant is estopped by this deed from claiming any interest in the one-sixth which she, together with the others, conveyed to her brother, Green Clay, thereby giving him the power to sell and convey it so far as she was concerned, and forever relinquishing all claims thereto. Without this deed, the purchaser, Louney Clay, and his vendee, the appellant, would have lost the property, as Green Clay died before his father; but as the brothers and sisters.
For these reasons, the judgment of the lower court is affirmed.