117 Ky. 239 | Ky. Ct. App. | 1904
Opinion op the court by
Reversing.
In the year 1871, C. B. Parsons died in Jefferson county, ■Ky., leaving a will, which was duly probated, by which he made devises to each of his seven children; H. B. Parsons, the father of these appellees, being one of them. He also, by the eighth item of his will, made a bequest to his wife, Emily C. Parsons. We quote so much of this item as will aid in elucidating the question to be considered. After giving her the property for life, he used this language: “At
the death of my wife, in her widowhood, all of my property reserved to her in this'item, both real and personal, shall be sold by my executors, and the proceeds equally divided among my heirs. My wife shall have power for good and sufficient cause to disinherit from the interest embraced in this item, any of my children, but in the event of her doing so, the interest so retained shall not be devised or given to- another, but shall be embraced in the general fund to be divided with the rest among my remaining heirs. Should my widow marry, it is my will that she shall have no power whatever to disinherit any one of my children so far as the property devised to her is concerned, but they shall take the property as my heirs under this will.” “She shall not have power to alienate, sell or encumber any of the real estate whatever, but shall keep the same intact. Should any of my children die (and by heirs I mean children) leaving issue (lawful) of their own, such issue shall stand in the place of their dead parent, and take in equal division among them what would have been under this my last will, their parent’s share in my estate.”
It is contended by the appellees — and the lower court agreed with them — that they had a remainder interest in this property under the will of their grandfather, and before they could be deprived of their interest in this property it was necessary that they should! have been mgde parties to that action, and, as they were not parties thereto, they still owned their interest. We are of the opinion that the lower court'erred. These appellees, under this will, merely held contingent remainder interests. 'Their grandmother held the life estate, and their father the fee, subject to be defeated by his death before his mother’s death. The general rule is that it is sufficient to bring before the court the persons whose several interests combined make up the first estate of inheritance. As these appellees’ grandmother and their father were parties to that action, and they owned together the first estate under the will at that time, it was unnecessary to have made appellees parties, as they were only contingent remaindermen, and were bound by repre
If such was not the rule, the deed or will of a grantor or testator might so limit the title passed as to leave the holder of an outstanding and paramount title without remedy because of his not being able, until after the happening of
It was not necessary to make those who might be heirs of Anderson parties to the action. Their interests, if any they had, were of so remote a character as not to be estimated or defined.” Also, see R. A. Robinson’s Sons v. Columbia Finance & Trust Co., (19 R., 1771), 44 S. W., 631; 17 B. Mon., 374; Park v. Humpech (20 R., 879) ; 47 S. W., 768.
T. Hansley who enforsed this improvement lien on this lot, was a stranger to the instrument or will by which the contingent limitations upon the title to this real estate were created, and did so by reason of his judgment regularly obtained against the life tenant in possession and H. B. Parsons, who held the first estate in remainder. Consequently, under the authorities referred to, we are constrained to hold that appellees have no interest in the lot described.
Therefore the judgment of the lower court is reversed, and cause is remanded for further proceedings consistent with this opinion.