12 Ky. Op. 725 | Ky. Ct. App. | 1884
Opinion by
This action was instituted by appellants in the Clark County Court of Common Pleas, in which it is in substance alleged that the father of appellant, Mrs. Ecton, gave to her certain real estate in said county
“My daughter, Alice Ecton, one heir, to share' in equal division after advancements considered. Advancements to date is land in Clark county, Kentucky, and other articles to date, $3,116.50, this my will gives to said Alice and the natural heirs of her body; but if she died without said heirs her portion of 1113' estate shall return to my estate to be divided between my other heirs. $3,116.50, Thirty-one hundred and sixteen dollars and fifty cents.”
The petition also alleges that Mrs. Ecton has no children. A demurrer to the petition was sustained and from: that ruling this appeal is taken.
It is clear beyond dispute that the provision of the will under which Mrs. Ecton claims creates in her a defeasible fee, and it is equalfy clear that the petition does not present a case for the removal of a cloud upon the title. In order to give jurisdiction to remove a cloud upon title it must appear that the deed or other instrument constituting the cloud may be used to injuriously or vexatiously embarrass and affect the title of the complainant. It must be a case where extrinsic evidence would be required to show the falsity of the claim, and not merely a case for construction. Here the question presented is purely one of construction, both parties claiming under the same instrument.
The testator having the unquestioned right to devise his property
The alternative relief sought of a re-distribution and equalization among the devisees would involve a re-settlement of the estate in a county different from that in which the personal representative qualified. This could not be done under sections 64 and 65 of the Civil Code.
Judgment affirmed.