Dickison v. Ogden's Ex'r

89 Ky. 162 | Ky. Ct. App. | 1889

JUDGE PRYOR

delivered the opinion of ti-ie court.

The will of Thomas Rogers is before us for construction. After making various devises, the testator gives all the rest and residue of Ms estate to three trustees, to bé held by them for the benefit of Ms daughter, Mary Jane Dickison, and her children, with the power to the trustees or the survivor to sell and reinvest the proceeds in other property with the consent of his daughter, &c. The trustees “ shall suffer- and permit my said daughter to hold possession and enjoy the said property, and to take and receive the yearly rents and profits thereof, during her natural life, and after her death then in trust for the use and benefit of the children of my daughter, and the descendants of such children as may be dead, and on the arrival at age of the youngest of my daughter’s children, or upon the marriage of said youngest child, then to divide the estate into as many shares as there are children of my said daughter then living, and children of my said daughter who are dead, leaving descendants then alive, and convey one share to each of my children then living, and one share to the descendants of each of the children who may be dead, the children to take such portions of the share as their parents would have been entitled to and no more.” Two of the children of the devisee became involved in debt, and their creditors are attempting to subject' their interest in the land, which constitutes the trust fund, or a part of it, to the payment of their debts, and the only question presented is, have they such an interest as can be subjected to sale by creditors, the life tenant being still alive? The chancellor below has so adjudged, and in this conclusion we concur.

The beneficiaries of the testator are his widow and children'. The plain provision of the will, and such was the intention of the devisor, was to vest' the daughter with an estate for life, remainder to her children, the land to be divided at a certain period between such of the children as might then be living.

The children took as remaindermen, subject to^ be divested oi title by their death before the happening of the event designated as the time the division is to be made. It is in the nature of a defeasible fee, and such an estate, notwithstanding the legal title is in trustees, may be sold to pay the debt of the remainderman. It is argued that a sale of the children’s interest would defeat the object of the testator when confiding in the trustees,.or a majority of them, the power to sell and reinvest the trust fund. The manifest purpose of this provision of the will was to enable the trustees to invest when, in their judgment, it would prove beneficial to the life tenant, and, of course, looking to the rights of those in remainder. The life tenant was to be consulted in regard to the investment, and none could be made without her consent, as it was her comfort and support that the testator was evidently looking to when this clause of the will was inserted. The purchaser stands in the shoes of the child whose interest he buys, and cannot prevent the reinvestment of the trust fund for the purposes and in the manner directed by the will. If the child could not prevent it, the vendee is placed by his purchase in no better condition.

The statute of this State, found in section 21 of .article 1, chapter 68, General Statutes, also provides that estates of every kind held or possessed in trust .shall be subject to the debts, &c., of the person for whose use or for whose benefit the trust property shall be held. As the appellants had an interest in this trust fund, the chancellor properly adjudged that interest liable for their debts.

Judgment affirmed.