180 Ky. 131 | Ky. Ct. App. | 1918
Opinion op the Court by
Affirming.
TMs action was instituted by S. P. Nunnelly, as guardian of Coleman Nunnelly, Clifton Nunnelly, and Nancy D. Nunnelly; Nannie D. Nunnelly, the wife of S. P. Nunnelly, and James E. Nunnelly, against Coleman D. Clifton, and Nancy D. Nunnelly, who are infants. S. P. Nunnelly and Nannie D. Nunnelly are the parents of the plaintiff, James E. Nunnelly, and of the infant defendants. In addition to the infant defendants and the plaintiff, James R. Nunnelly, Nannie D. Nunnelly had seven other children, who are now dead. Nannie D. Nunnelly is the owner of a life estate in certain lands, which were devised to her by her father, James A. Darnahy, and by her aunt, Martha Weathers. It seems, that, heretofore, Nannie D. Nunnelly and her husband, S. P. Nunnelly executed a mortgage upon the entire interest of Nannie D. Nunnelly in these lands, and that one or more of her adult children joined in this mortgage. The petition al
The clause of the will of James A. Darnaby, under which the lands are held, is as follows:
‘ ‘ 5th. It is my will and desire that my executrix keep all of my land and manage it as she may see proper or best, and for her to have a good living out of the income during her life, and in the event of her death, then it is my will and desire, that my land be divided equally between my two daughters, Mattie Weathers and Nannie*133 Nunnelly to have and to hold during their natural lives, and in the event of the death of my daughter, Mattie Weathers, her share of my land shall go to her child or children, and in the event of the death of my daughter, Nannie Nunnelly, then her share of my land shall go to her child or children, and in the event of the death of either of my two daughters above named leaving no child or children, then their share of my land shall go to the other daughter and to her child or children at her death.”
It is very clear, that by this clause of his will, the testator intended to create in his wife an estate for her life, and at her death a life estate should be created in Nannie Nunnelly in one-half of the land, and at her death, that, it should pass, in fee, to her children, if she had any such living at that time, and if she left no child or children surviving her, then the portion of the land devised to Nannie Nunnelly for life should go, in fee, to Mattie Weathers, if living, and if not to her children. The clauses of the will of Martha Weathers, under which a portion of the lands in controversy is held, are as follows:
“3. Thirdly, I give to my niece, Nannie Darnaby, the other undevised one-half of said tract of land mentioned in the second clause of this will. ...
“5. Fifthly, should Nannie Darnaby die without children, it is my will that the property, real and personal, devised to her by this will shall pass to the children of Mattie Weathers. (....) and should any of the said children die in their minority, I want their share to pass to the surviving children of said Mattie. ’ ’
The sixth clause of the will is as follows:
“Should Mattie Weathers die without children, it is my will that her entire interest devised-to her by this will shall pass to Nannie, but should she be deceased leaving children, then I want the whole estate to pass to them. ’ ’
From the above provisions, as well as his entire will, it is clear, the testator intended to devise the lands to his niece, Nannie Nunnelly for her life, and at her death, it should go, in fee, to her children, if she left any surviving her, at that time, and if not the lands should pass, in fee, to such children of Mattie Weathers as should then be surviving. Nannie Nunnelly having outlived her mother, Susan Darnaby, there is no question with regard to her vested right to a life estate in the lands devised to her under the will of James A. Darnaby. It is equally
The indebtedness for which the interests of the infants in the real estate is sought to be sold is alleged to be indebtedness incurred by their parents in their maintenance and education. No application was made to any chancery court for the purpose of subjecting the interests of the infants in the lands to a sale for the purpose of providing funds for their maintenance and education, and it is now sought to sell their interests, whatever they may be, in the lands in order to satisfy debts, which the parents have heretofore incurred. It has been several times held by this court, that the real estate of an infant can
The judgment of tbe court below, although based upon a different reason from that assigned herein, but tbe result being tbe same, is therefore affirmed.