| Ky. Ct. App. | Jun 23, 1939
Affirming.
This is an appeal from a judgment of the Fayette Circuit Court, sitting in equity. In 1903, Mary Helm died testate. After providing for the payment of her debts and funeral expenses, and making certain specific bequests and devises, she provided for her daughter and her only surviving child, Margaret Helm, in the fourth clause of her will:
"Fourth. All the balance of my personal estate of every kind, and all of my real estate, I give and devise to the Security Trust and Safety Vault Company of Lexington, Kentucky, in trust for the use and benefit of my daughter Margaret Helm * * *. At the death of my said daughter Margaret Helm if she leaves issue surviving her, then the whole of the aforesaid trust estate, shall be paid over to her issue in such proportion as said issue respectively would take and inherit said trust fund from her under the law of descent and distribution then existing in the state of Kentucky."
In 1936, Margaret Helm died, testate, unmarried, and without issue. Her will provided in part, that:
"* * * I devise, bequeath, and give all the remainder of my property and estate, of whatever kind and description and wherever situated, including the property held in trust for me by Security Trust Company of Lexington. Kentucky, * * * to Christ Church Cathedral of Lexington, Kentucky, for such good uses and purposes as it may wish to make of it."
The Security Trust Company (previously known as the Security Trust and Safety Vault Company) qualified as executor and trustee under the will of Mary Helm, and as executor of the will of Margaret Helm, *455 and it is made a defendant in this proceeding. Appellants, who sue on behalf of themselves and all other alleged heirs-at-law of Mary Helm, contest the right of Margaret Helm to pass any interest in the trust property by will. They maintain (1) that Margaret Helm took merely a life estate in the property devised to her under the will of Mary Helm, and that the property descended to the then heirs of Mary Helm under the laws of descent and distribution when Margaret Helm died childless; and (2) that fee simple title lay in the Security Trust Company, as trustee, subject to being divested by the birth of children to Margaret Helm. The chancellor however found that Margaret Helm "took a life estate in the property devised, and that the remainder subject to be defeated upon the contingency of Margaret Helm's having a child or children born, was undevised property, and passed by descent to the only child and heir at law, Margaret Helm, and that she, the said Margaret Helm at her death, had the right to devise the entire fee in the estate by her last will and testament." This appeal followed.
The appellants lean heavily upon the statement of this Court in Barnes v. Johns,
"If a contingent remainder be created in conveyances *456 by way of use, or in dispositions by will, the inheritance in the meantime, if not otherwise disposed of, remains in the grantor or his heirs, or descends to the heirs of the testator, to remain until the contingency happens. This general and equitable principle is of acknowledged authority."
It is the theory of the common law that the inheritance must always reside somewhere in order that there shall always be someone in existence to represent it in actions brought for its recovery and to protect the interest of the heirs. Minor on Real Property, Second Edition, Section 758. The inheritance does not remain in nubibus but remains in the grantor or his heirs, if he be dead, pending the occurrence of the contingency. Coots v. Yewell,
In Bourbon Agricultural Bank Trust Company v. Miller,
"By recognizing that testator might have made further and final disposition of all the property in question without in any wise revoking or affecting the interests in the same he had previously devised, it follows that we recognize that there remained in testator an estate in the property in question that he did not dispose of by his will. By his will he devised only an estate for life and a contingent remainder, neither of which embraces the fee in the property. Following the precedents laid down in the authorities hereinbefore referred to, we hold that the fee remained in testator; that he died intestate as to same, and that upon his death it descended by inheritance from W.W. Massie [the *457 father] to William Charlton Massie [the son], the fee, however, being subject to be defeated by the happening of the contingency of his having children to take the contingent remainder. We hold that upon the death of William Charlton Massie, coincident with which ended the possibility of there ever being remaindermen to take the contingent remainder, the fee, freed of all incumbrances and contingencies, descended to William Charlton Massie's heirs, a moiety to the collateral kin of his father and a moiety to the collateral kin of his mother."
Appellants recognize the rule that the inheritance cannot remain in nubibus but they assert that the estate was vested in the trustee rather than in the heirs of the testatrix. Exactly the same contention was urged in Bourbon Agricultural Bank Trust Company v. Miller, supra, and the Court there held that the intervention of the trustee made no difference. It was pointed out that the estate taken by a trustee is commensurate with the powers conferred and the purposes to be effectuated. The purposes of the trust being executed, his estate ceases. Appellants, however, seek to distinguish the case from the case at bar because, as they assert, the powers given to the trustee under the will of Mary Helm are much broader than those granted in the Massie will. We are unable to concur in this contention. While the powers given may have been broader, the duration of the estate of the trustee is the same. The trust here involved was not an estate of inheritance but necessarily terminated when its purposes were accomplished. It may be observed that the will of Mary Helm does not limit the interest of her daughter to a life estate. It may well be that testatrix intended that Margaret Helm should take a defeasible fee subject to the trust during her lifetime and subject likewise to the contingency of the birth of any children she might have. Whether we follow this view, or consider simply that the remainder after Margaret Helm's death was undevised property, we must reach the same conclusion — which is that the inheritance was vested in Margaret Helm and she could dispose of it by will.
Judgment affirmed. *458