McQuerry v. Gilliland

89 Ky. 434 | Ky. Ct. App. | 1890

JUDGE BENNETT

delivered the opinion oí? the court.

The record, as we think, establishes .substantially the following state of .case: In 1849 the appellant, William McQuerry, and .his ..father, John McQuerry, ■ bought two-land warrants, .of one.-hundred and. sixty acres each, which had .been issued by the. Federal Government to . the -.soldiers. of the Mexican war.- These warrants were for land . in the. State of . Iowa. The appellant, by an arrangement with .his father, .went to.the State, of Iowa, in .company.with ,his younger brother, Milton Green McQuerry, then about seventeen years old, for the purpqse of, locating these warrants, - and of obtaining patents, two of which were .to be in his .own .name, and two .in .the . name of his father, John McQuerry. But, if, from any cause, patents on the tw.o warrants could not, be obtained in the father’s .name, they were to be.obtained..in the appellants name, for .the benefit of the father. The. appellant, on arriving at the land office, in the State of Iowa, found,1 owing, to the absence o,f his .father from .the State, and'not having his written power of attorney, that he could not obtain the patents in his father’s name; and, pursuant to the alternative agreement, caused them to be issued in his own name; but failed thereafter to convey the land to his father.

His father, in 1852, died, leaving a last will, which was recorded in Pulaski county; and the appellant was named in the will, and qualified as one of the executors, and entered apon and continued to discharge his duties as executor of the will. He was also one of the devisees of the will, and received the portion of the estate devised to him.

The testator, among other things, willed to his wife, during her life, this Iowa land, remainder to his son, Milton Green McQuerry, and recited the fact that hé bought the two warrants, and that the appellant haá to have the patents issued in his own name, and requested him to convey the land to his wife for and during her life, remainder to Milton Green McQuerry.

Milton Green McQuerry died soon after the war, without having had issue, and the widow of the testator, John McQuerry, having died in 1884, the appellees brought this action in equity to compel the appellant to convey to the appellee, Mrs. Gilliland, sister of the appellant, one-third of said land as a co-heir, with the appellant and the children of Mrs. Gilmore, deceased, sister of the appellant and appellee, of said Milton McQuerry. Said children, it is alleged and proven, received a conveyance from the appellant, in 1872, to a quantity of said land, equivalent to two-thirds thereof.

It is to be observed that the appellant is one of the devisees under the will, and accepted its provisions, and is one of the executors thereof; also, supposing that the testator was mistaken as to owning, or ever having owned any interest in, said Iowa land, that the -appellant was bound to respect, and it, in fact, belonged to the appellant, yet it is a fact that the testator devised a portion of Ms own estate to the appellant, and directed (the request is, in tMs will, equivalent, to a direction) the appellant to convey this land to the widow for life, remainder to Milton Green McQuerry. The testator, in making tMs direction, assumed to dispose of this land as his own ; and, in connection with •other estate, certainly Ms own, devised portions of the whole to all of Ms children; and, but for reckoning the whole as his, he, doubtless, would have made a -different disposition of the estate that did, in fact, belong to Mm. So the question arises, supposing that said land belonged to the appellant, but the testator, having assumed to dispose of it by will, and the appellant having been made a devisee under that wñl, and having accepted its provisions, has he not thereby -elected to surrender all right to said land, and to make the conveyance according to the direction of the will?

The principle is well settled where a testator devises Ms own estate, or a part of it, to a person,, and also -devises that person’s estate to another, and that person accepts the estate thus devised to him, such person will not be heard to assert his old right; but, by thus accepting the provisions of the will, he relinquishes his old right to the other person. He can not enjoy the bounty conveyed by the will, and, at the same time, claim his old right. The intention of the testator, in such case, is, that both bounties shall take -effect, and the conscience of the devisee is affected -by this intention; and, having accepted the bounty, it would' be a fraud upon the testator to allow him to thus accept the- bounty; and’, at the -’same-tibie, hold on to the bounty that the' testator intended fob another; and, but for the'belief that such other would receive tlie bounty, the devises would not have''been thus Made.' It‘is to'prevent this fraud that equity puts‘this donee'to his election-; ánd, having--made his election’to accept the provision' for his benefit, he thereby elects to abide by all of the'provisions of the will, and surrender all right" inconsistent with them, and to do Whatever the will directs him" to do, in order to Carry out its provisions. The right of the appellees is not barred by‘time, for the trust continued ail the' time. ’

The appellant contends that' as the will was- not recorded in Lucas county, Iowa, where the land was situated, the appellees can not maintain this' 'action. Tins' contention is based upon the fact that as Milton Green McQuerry could not have'maintained "an- action in the State of Iowa for the recovery of the-land, because the will Was not recorded' in that State, it . follows that his heirs can not maintain this action' to compel a conveyance. 'Wé can not agree to this' contention. It is well settled that the performance of an equitable obligation, or an obligation that may be enforced by'an action in personam'arid not in rem, may be enforced whenever the chancellor may obtain" personal jurisdiction of the person, without regard to the fact that the real estate, to which such obligation relates, is situated in another State.

In the case of Massie v. Watts, 6 Cranch, 148, the case going to the Supreme Court from this State, the court said: “Either in consequence of contract or as trustee,, or as the holder of a legal title, acquired by any species of mala yicZes practiced on the plaintiff, the principles of equity give the court jurisdiction wherever the.person-may be; and the circumstance that a question of title may be involved in the inquiry, and. may even constitute the essential point on which the case depends, does'not seem sufficient to arrest that jurisdiction. * * * The court is of the opinion, that, in case of fraud, of trust, or of contract, the jurisdiction of a court, of chancery is sustainable wherever- the person be found, although lands not within the jurisdiction of that.court may be affected by the. decree.”,.

In.such case -the■ subject-matter is not that-of the recovery of land. In other words, it is not an action in rem. The "court" need not"have the land before it iri' order' to be- ’ able to render a judgment; blit' the action is in personam, for the purpose of enforcing a personal obligation of'contract or of trust. It is 'true that the. title to land is to...be affected by the decree, in so far as it compels the party to-convey; but* as said," by reason of his' trust or contract duty, he is personally, obliged-to convey, and that duty-may be discharged in one State as well- as another, although the land may not be situated in such State. .It.is the breach of trust or contract' to convey that may' be complied with,’ without regard to the location of the land, that gives -the right of action in -personam.- If Milton Green McQuerry were .alive, he, for. the foregoing reasons, could maintain this action in this State,, and he being dead, the appellees can maintain it.

The judgment is affirmed.