135 Ky. 813 | Ky. Ct. App. | 1909
Opinion op the Court by
Reversing.
In the month of March, 1874, the will of J. D. Porter was duly probated in the Butler county court, and recorded in the clerk’s office. He owned at his
“3rd. I will after all my debts are paid that the remainder of my estate belong to my beloved wife and her children.
“4th. I will that my wife and children remain on the place until they marry or become of age.
‘ ‘ 5th. I will that all of the children who are not of age be made equal in.property with those who have married or may marry, that is I want them to have the same outfit.
“6th. I will that should my wife Sally die and there should not be a sufficient amount of perishable property on the place to make the youngest children equal in an outfit that they be made equal out of the proceeds of the land; an outfit is understood to mean horse, saddle and bridle, bed and clothing, cow and calf.
“7th. I will that After all my children have had an equal outfit at the death of my wife Sally that my land be sold & divided equally between all my children.
“8th. I will that my wife Sally shall abide at my old residence or on a place that shall be purchased by my executor out of the proceeds of the old residence, should she live to become disabled from age or affliction that she shall be provided for out of my estate.
“9th. I will that my son ‘William. A. Porter be my executor and that he in the event of certain things that may come up in the division of the land on which I now reside that may render the place ill convenient and unprofitable that he shall have power to sell and
The widow of J. D. Porter died in the early part of the year 1908. She remained a widow and.resided on the land as. requested by the will. J. D. Porter, the testator, had 11 children, some of whom died prior to his death and left children surviving them. The testator’s estate, under the will, was to be divided into 11 equal parts. Sam Porter, a son, resided on the place with his mother and cared for her until his death in 1905, and his widow' and children resided with and supported the old lady from that time until her death. Sam Porter, while residing on ihe farm with his mother, purchased the interests of several of his brothers and sisters, nieces, and nephews in the land or its proceeds, amounting in all to 23-33 of the whole. A part of the consideration for these interests, or, at least, some of them, was that Sam was to live with and support his mother during her lifetime, which, in our opinion, he complied with until his death, from which time his widow and children substantially carried out his contract in this respect.
This action was instituted in the month of Octo-, her, 1908, by John D. Porter, a brother, and sister against the other heirs and interested parties for a sale of the land and a division of the proceeds among them. The main purpose of the suit, as stated in the petition was “to test the question whether the devisees owned an interest in the real estate or
The action of the court in declaring the deeds executed by J. E. and J. B. Porter void for want of description is the first question that arises on this appeal, and we will dispose of it now. As the descriptions in the deeds are in substance and effect the same we will copy hut one, to wit: “Do bargain, sell and convey unto the said party of the second part, a certain tract or parcel of land lying in Butler county, Ky., and described as follows: Our entire interest in the S. A. T. Porter farm except 1-2 acre more or less on the north east corner of said farm where J. D. Porter now lives.” In our opinion this description was sufficient. The testimony shows that S. A. T. Porter had no claim to or interest in any other land in that county; that she had resided on that farm for many years after her husband’s death. The description given disposed of their interests in the S. A. T. Porter land in Butler county. The land referred to was known as the ¡3. A. T. Porter land. The statement to the effect that it was the same land out of which one-half acre had been previously sold to J. D. Porter upon which he resided made certain the land described, as it was shown in the record that J. D. Porter had purchased one-half acre off of one end of the Porter survey upon which he erected a dwelling and resided for many years. The case of Hyden v. Perkins, 119 Ky., 188, 83 S. W., 128, 26 Ky. Law Rep., 1099, and the authorities therein «cited, settle the question. The court should not have re
We are of the opinion that the court did not err in sustaining the demurrer as 'to the item of $737 claimed by reason of the deficiency in the articles of personal property,, which is authorized to be set apart to widows and infant children by the statute.
In the ninth clause he gave his executor power, provided certain things happened, to sell the land and divide the proceeds among his children equally. After the. death of their mother, the life tenant, the children instituted this action to have the land sold, and the proceeds divided as directed by the will.
The doctrine that land directed to be converted into money by a testator is to be regarded as a money legacy is well established, and has been long recognized by the courts of this state, subject, it is true,
The cases of Rawling’s Exor., &c. v. Landes, &c., and Holeman, &c. v. Landes, &c., 2 Bush, 158, are conclusive of the question at issue. It appears in those cases that Jacob Holeman devised to his wife for life 200 acres of land, and directed that at her death the land be sold by his executor and the proceeds divided among his children and two grandchildren. Subsequent to Holeman’s death his daughter, Mary, a devisee, married one Benjamin Raw-lings, and died childless in the year 1845, and her husband survived her only about a year, when he died, leaving surviving him as his only child and residuary devisee appellant, John W. Rawlings, by a former marriage. Mary’s brothers and sisters sought to recover the interest in the proceeds devised to her in this 200 acres of land. John W. Rawlings, a child of Benjamin by a former marriage, claimed it for the reason, as he claims, the will of Holeman had converted the land into personalty, and it was therefore given to Mary as a money legacy and upon her death her personal property passed, under the statutes, to her husband, and, when he died, it passed to Rawlings, his only son. The court upheld Raw-lings in his contention, and gave him the interest in-the proceeds of the sale of the 200- acres of land which had been devised to Mary Rawlings. In dis
For these reasons, the judgment of the lower court is reversed and remanded for further proceedings consistent herewith.