202 Ky. 686 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming.
On August 17, 1896, Andrew B. Hampton and wife conveyed to appellant and plaintiff below, Dora B. Kimbrell, who was.then Dora B. Foreman, a tract of land in Montgomery county containing slightly more than 106 acres. In the caption of the deed plaintiff is mentioned as “party of the second part” and in the granting clause the conveyance is to her, “her heirs and assigns,” as is also true in the habendum; but immediately following the description there is a limitation clause in these words: “This deed is made upon the following conditions that should- the said Dora B. Foreman die without heirs then the said land is to revert and go back to Andrew Parmer and his mother Arminda Parmer her (plaintiff’s) mother. ’ ’
This equity action was filed by plaintiff and her husband against the defendants, the two Parmers, under the Declaratory Judgment Act to obtain a -construction of the deed, and in her petition she averred that the quoted limiting clause was void and that under the deed, correctly construed, she took the absolute fee to the land conveyed. Defendants demurred to the petition, which the court sustained, and plaintiffs declining to plead further it was dismissed, to reverse which this appeal is prosecuted. In the court’s opinion he construed the deed as conveying to plaintiff only a life estate in the land, but we do not understand from the record that such construction was made a part of the judgment, but only set forth the reason for the court’s action in sustaining the demurrer.
Prior to the enactment in 1851 of section 2344 of the statutes, a conditional limitation in a deed, -or an executory devise in a will, after the death of the first taker “without heirs,” “without children,” “without issue”
In the Murphy ease and in Dinger v. Lucken, 143 Ky. 850, and numerous others both preceding and following them, it was held that the first rule to be observed by the courts in the interpretation of deeds, wills and other writings is to ascertain from their entire contents the intention of the maker or makers and to construe the writing according to that intention, if not in contravention of some announced public policy or positive rule of law, which latter we do not interpret to mean or include rules of construction. At common law fee simple titles were so highly regarded that they were not permitted to 'be curtailed by a subsequent limiting clause, even though inserted and contained in the same instrument; and in denying them effect many courts, including this one at the beginning, discarded such limitation's, although it was done at the expense of defeating the plainly expressed intention of the maker. In later years, however, this court has consistently followed the rule of administering the intention of the testator and has upheld such limitations the effect of which was to cut down and reduce the absolute fee conveyed in other parts of the in
In the Murphy case and in those of Daniel v. Thompson, 14 B. M. 533; Sale v. Crutchfield, 8 Bush 636, and Louisville Trust Co. v. Erdman, 22 Ky. L. R. 729, it was held that similar language to that involved here conveyed to the first taker a defeasible fee, subject to be defeated upon the contingency of his or her death without the survival of any of the persons named upon whose survival the fee became absolute. The court, therefore, was in error in his opinion when he held that plaintiff took only a life estate in the land conveyed because it is manifest under the cases referred to, and authorities' cited in them, that she took a defeasible fee. However, the judgment was proper, since it denied the construction contended for by plaintiff, that she was conveyed by the deed an absolute fee simple title.
Wherefore, the judgment is affirmed.