Hinkle v. Hinkle

168 Ky. 286 | Ky. Ct. App. | 1916

Opinion op the Coubt by

William RogeRs Clay, Commissioner

— Reversing..

On Angnst 2, 1912, C. B. Hinkle died testate a resident of Nelson county.- ' He left snrviving him his wife, Katie C. Hinkle,. ■ and an infant -daughter, Pauline 0. Hinkle. At the time of his death he was the owner of certain- real estate in- Bardstown. After making certain specific bequests to his mother, his widowed-.sister and his brother, which are not material- to this controversy, his 'will, which was duly probated by. the Nelson county court, is as follows: ■

“P give all the rest of my property, both real and personal of every kind and wherever located to my beloved wife, Katie C. Hinkle, to be hers to hold, use and control and to be responsible to no one for her management as long as she shall remain, my.widow. Should she desire to marry again, before such marriage I want my estate as it shall then be found to be regularly administered under the laws of Kentucky by a competent appointee of the court.

“I ask the court to appoint my beloved wife, Katie C. Hinkle, as sole executrix of my estate and to require no security of her as such.

“Given under my hand and seal in the presence of two witnesses, whose names áre signed below, this the 23rd day of July, 1912..” . .

Plaintiff, Katie C. Hinkle, brought this suit against her daughter, Pauline C. Hinkle, to have the will construed. The chancellor adjudged that plaintiff took only a life estate in the property devised,-subject to be defeated by her remarriage; with power to hold, use and control without responsibility for her manageihent during. her widowhood, but without power of alienation. Plaintiff appeals.

It is clear that the testator intended, in case .plaintiff married again, to adopt and did adopt the statute of descent and distribution as--part- of his will.-' In- the event of her reinarriáge, therefore; she will take -only a life estate in one-third of the real property. In view of the language employed, and of the fact that there is no limitation over unless plaintiff marries again, we conclude that she takes a defeasible fee, subject to be defeated by her marriage and converted into a life estate in one-third of the real property; While she may - sell such property if she is able to find a purchaser who is willing to run the risk of her remarriage, she cannot convey a good title. The purchaser may acquire a good title if she dies without having contracted another marriage. If she does marry again, the purchaser will acquire only a life interest in one-third of the property. As the chancellor held that plaintiff took a mere life estate, ■ subject to be defeated by her remarriage, and that she had no power to alienate the property, it follows that the judgment is erroneous.

Judgment reversed and cause remanded with directions to enter judgment in conformity with this opinion.