118 Ky. 423 | Ky. Ct. App. | 1904
Opinion or the court by
Reversing.
The appellants sued Roland Hatchett, alleging that Sarah Hatchett, who was the mother of appellant Julia McFarland and appellee Madison Hatchett, owned a house and lot in Henderson, Ky., for life, and that her children owned the fee in remainder; that Sarah Hatchett died some two- years before the institution of this action, and that appellee, Roland Hatchett had been in possession of this property, and. owed her and her brother rent from the date of her mother’s death to the institution of this action; that the property was not susceptible of division; and prayed judgment for rent against Roland Hatchett, and for a sale of the property for a division of the proceeds. Appellee, Roland Hatchett demurred to the petition. His demurrer was sustained. Appellant declined to amend, and the petition was dismissed, with costs. The circuit court decided that Sarah Hatchett had a fee simple in the property, and that appellee, her husband, Roland Hatchett, had an estate by the curtesy in it for life. The deed to Sarah Hatchett was made prior to the passage of the married woman’s act in 1894, and their marriage occurred long prior to the passage of this act, and if, under the deed, Sarah Hatchett took a fee simple title, then the court was right in adjudging R-oland Hatchett an estate by the curtesy. See Rose v. Rose, 104 Ky., 48, 20 R., 417,
In the case under consideration, Sarah Hatchett, the grantee in the deed, named in the caption, paid for the land, and she had the right to control the form of it, and especially the parties who should take under it; and it is presumed that she intended that her children should take the remainder in fee, reserving to herself the life estate; and we are constrained to hold that the words “and her children,” as used in the granting and habendum clauses, were used as words of purchase rather than as words of inheritance.
Wherefore the judgment of the lower court is reversed, and the cause remanded for further proceedings consistent herewith. .