202 Ky. 193 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming.
The appellees, Mrs. Yirginia Harris, et al., seek the specific performance of a contract of date March 17, 1922, by which she and others agreed to sell to appellant Johnson a farm located in Shelby county at the price of $125.00 per acre. Appellant Johnson declined to carry out the contract, although he admits he entered into it, because, he says, appellee’s title was and is not perfect and that the deed which they tendered did not convey a merchantable title. The boundary of land mentioned in the contract is composed of two tracts, or rather the appellees acquired title from two different sources, each of which is questioned in part. The first tract in question was acquired by appellees by will from Charles H. Harris, husband-of appellee Yirginia Harris, and father of the other appellees. The title to this tract is questioned, the appellant saying in his answer ‘‘that
Just above the quoted clause is the third clause, reading:
“At the death of my wife I will my entire estate to my two daughters, Emma Mae and Martha Lee, share and share alike.”
This clause appears to invest the daughters with a fee in remainder. If it is modified by the fourth clause above copied, it vests the widow with power to dispose by will of the share of either daughter upon the death of such daughter before the mother. The third and fourth clauses must be read together, and when so read the daughters take a fee subject to be defeated upon the death of either before the death of the mother should the mother exercise the power and dispose of the interest or the share. Otherwise the share would pass to the heir or heirs of the daughter. The power is one in gross and not collateral. The mother was not required nor was she under duty to exercise it. She had the privilege of doing so, but if she failed to exercise the power the share passed to the heirs of the daughter. It seems well settled that a power of appointment, as in this case, given to the life tenant to appoint by will is a power in gross and not a power collateral, or a power coupled with a trust or duty; and such a power may be extinguished by the donee. Any dealing with the property which is the subject of a power inconsistent with the exercise of such power will operate as an extinguishment of the power. Columbia Trust Co. v. Christopher, 133 Ky. 335; 21 R. C. L. 808, sections 43 . and 1054.
The facts with respect to this contract are as follows: After the death of Harris and the probation of the will,
The second tract was acquired under the will of John E. Crockett, which was made in June, 1872. By the second paragraph of the will of Crockett it is provided:“I will to my wife for life one-third of my farm, including the residence and improvements the land to be laid off to her according to quantity and quality without placing any value on the residence or improvements, and this one-third I devise in remainder subject to my wife’s life estate, equally to my four daughters, Amanda M. "Wilson, Margaret, Nancy and Lorilla, or such of them as are living at my wife’s death (in case of the death of either of them before my wife, leaving issue, such issue shall take the mother’s portion) for the sole and separate use of my said daughters during life free from the debts or control of any husband they may have.”
Continuing, the will says:
“If after the death of my wife my daughters or guardian, R. Y. Crockett, shall deem it expedient to sell said land, or if any one of my daughters or her guardian, R. Y. Crockett, should deem it expedient to sell her interest, I direct that said sale may be made by and with advice and consent of my brother Robert," who shall collect the purchase price and reinvest the same in other lands or real estate to be held for like purposes and uses for which the land sold was held under this will.”
Clearly a perfect title could be passed to the lands by the daughters or either of them, upon the advice and consent of R. Y. Crockett. He gave this consent by joining in the questioned deeds and conveying the land. He must have approved the transaction, else he would not have signed and acknowledged the deed. It is said, however, in brief for appellant that it is not shown by the record that the sale was necessary or proper. This was not required by the provisions of the will. The sale was authorized if the guardian “deemed it expedient to sell the land.”
The deed of the daughter to her guardian, R. Y. Crockett, was not void, and as she has not questioned it for about fifty (50) years, she is now estopped to do so, and she being unable to challenge the sufficiency of that conveyance no one can do so for her. Hanna v. Spott’s Heirs, 44 Ky. 362; 43 Am. Dec. 132; Scott v. Freeland, 45 Amer. Dec. 310; 12 R. C. L., pp. 1142 and 1172; Harris v. Hopkins, 166 Ky. 147; 8 Ky. Op. 14; 28 C. J. 1187; Morris v. Garrott, &c., 15 Ky. L. R. 305; Faucett v. Faucett, &c., 1 Bush 511.
Judgment affirmed.