93 Neb. 746 | Neb. | 1913
This suit was instituted in the district court for Pawnee county by the sons and only heirs at law of Lavinia W. McNeer, deceased, to establish their title to and to re
The controlling question in the case is the construction to be given to a deed executed by Watts Parker, the father of Lavinia (Mrs. McNeer), August 30, 1872, to lands in the state of Kentucky. Lavinia had become the wife of A. D. McNeer seven months prior to the execution of the deed by her father. The deed was as follows:
“This indenture, made this 30th day of August, 1872, between Watts Parker of Jefferson county, Kentucky, of the first part, Reuben E. Parker of county and state aforesaid, of the second part, and John. Q. Irwin of county of Ballard and state aforesaid of the third part, trustee for Lavinia W. McNeair (wife of A. D. McNeair) of Jefferson county, Kentucky, witnesseth, that the said Watts Parker for and in consideration of the sum of (fight thousand five hundred dollars in hand paid to him as follows, viz., five thousand dollars by the said Reuben E. Parker and three thousand five hundred dollars by the said Lavinia W. McNeair the receipt of all of Avfiich is hereby acknowledged by the said Watts Parker, hath and doetli hereby grant, bargain, sell and convey unto the said second and third parties (certain lands therein described), to have and to hold the said three tracts or parcels of land to said Reuben E. Parker and John Q. Irwin in the following proportions and conditions, namely, to the said Reuben E. Parker 7-12ths thereof for himself, his heirs and assigns forever, and the remaining 5-12ths thereof is conveyed to said John Q. Irwin in trust for the sole and exclusive use and benefit of the aforesaid Lavinia W. McNeair and her heirs forever.
“It is expressly understood-that the said Lavinia shall use and occupy said five-twelfths of said land hereby intended to be conveyed to her and said Reuben E. Parker *-• tenants in common in the proportions aforesaid; that*748 is, 7-12ths to said Reuben E. and 5-12ths to Lavinia W., and should she and her said trustee, John Q. Irwin, a.t any time think it would be to the interest and benefit of the said Lavinia W. to sell her interests in the above described three tracts of land they, the said John Q. and Lavinia, shall have the same to the purchaser or purchasers, provided nevertheless that the purchase money received therefor shall be reinvested in real estate such as said John Q. and Lavinia W. may select, and the land so purchased shall be conveyed to and held by a trastee for the use and benefit of said Lavinia on the same terms and conditions that the land herein and hereby conveyed to John Q. as, trustee is held, to have and to hold the same in the proportions aforesaid; that is, 7-12ths to the said Reuben E. and 5-12ths to John Q., trustee, as aforesaid, as tenants in common with covenants of general warranty.”
Subsequently, by deeds from each to the other, the regularity of which is not questioned, the lands covered by the deed of Mr. Parker were partitioned. Thereafter, in accordance with the provisions of the deed for sale and reinvestment, Lavinia and her husband, Andrew, acting as her trustee, (Mr. Irwin being then deceased), sold her interest in the Kentucky land and reinvested the proceeds in the Pawnee county land. The Pawnee county land was conveyed to Andrew McNeer, husband of Lavinia, as trustee, by a deed containing the terms.and conditions of the original deed from Mr. Parker. In 1886 Lavinia and Andrew McNeer were divorced, and a few months later Andrew married another woman. On October 16, 1888, Lavinia sold and conveyed the land to one Miller, from whom it passed by mesne. conveyances to defendant Robert Patrick. On June 28, 1908, Lavinia died without having remarried.
The decision of this case rests upon the construction to be given to the deed of Mr. Parker in 1872, the question being: By that deed, did Lavinia take a life estate only, with remainder to her children, or did she take an
The lands in controversy having been purchased with the proceeds derived from the sale of the Kentucky land, under the terms of the deed from her father, we think the rights of Mrs. McNeer, under her deed to the Pawnee county land, must be determined by the laws of Kentucky, and the decisions of the supreme court of that state construing the same, at the time the deed from Mr. Parker was executed. Upon the trial certain sections of the statutes of Kentucky of 1873, and a number of decisions from the supreme court of that state, -were introduced in evidence. Section 1, art. II, ch. 52, p. 518, provides; “Marriage shall give to the husband, during the life of the wife, no estate or interest in her real estate, including chattels real, owned at the time, or acquired by her after marriage, except the use thereof, with power to
In Carter v. Carter, 2 Bush (Ky.) 288, it is held: “The power of the husband to lease and receive the rent of his wife’s land does not apply to laud held by a trustee for the ‘sole and separate use’ of the wife.” In the opinion
Oases similar to the above might he multiplied, but we deem further citation unnecessary. The purpose of the deed from Watts Parker to a trustee for the sole use and benefit of Lavinia was for the sole purpose of protecting her against her husband and his creditors. It was not intended to and did not vest any estate in her children. The words, “her heirs,” were technical words of inheritance merely, and not words of purchase. When Lavinia became discovert by the divorce of herself and husband, the reason for the trust no longer existed, and the trust estate immediately terminated; and no other trustee having been appointed for her, thenceforward she was vested with the fee simple title to the land, with full power to convey the same, and her deed to Miller passed the full and complete title to the land in controversy.- The title having been subsequently conveyed to defendant Patrick, he likewise took and holds a full title in fee simple. It might be said in closing that this holding does full justice in this case, as Miller and his grantees paid full consideration for the land, and had been in actual possession of the same for about 21 years at the time of the commencement of this suit.
The above holding renders a consideration of the other questions raised upon the trial and discussed in the briefs immaterial.
Affirmed.