192 Ky. 122 | Ky. Ct. App. | 1921
Opinion of the Court by
Affirming.
Zachary M. Sherley died, testate, in 1879. His last ■will and testament was duly probated. The first and second clauses of the will are as follows:
1st. “I give my beloved wife, Susan M. Sherley, during her natural life, the house and lot on the southwest corner of Third and Chestnut streets, in the city of Louisville (my present residence), and I give to her absolutely all the furniture in said house, of every kind and description; also-, all my horses, carriages, and equipment. I, also, give to my wife, either in lawful money -or in such bonds, stocks- or notes ($60,000.00) sixty thousand dollars, to be paid to her within -a reasonable time after my death. If she shall elect to take -stocks, bonds and notes, then she shall take at the prices fixed by the appraisers, hereinafter named. My object is to make her comfortable and independent. Hoping and believing that the provision I have made will be satisfactory to her.
2nd. “Upon the death of my wife, I direct that the house and lot, herein before given her for and during her natural life, should be sold by my executor at public auction, after reasonable advertisement on such terms as my executor may deem most advantageous, and the proceeds equally divided between my three sons, John C., Thomas H., and George Douglas Sherley.”
The executor of the will was nominated by it.
The widow, Susan M. Sherley, is yet alive, but the remaindermen, John C., Thomas H. and George Douglas Sherley have died intestate. George Douglas Sherley left no -children, and -his mother was his only heir. John C. Sherley left surviving him two children who are appellants herein. Thomas H. Sherley left several -children, one of whom is an appellant herein, and the others,
In .the year 1880, for a consideration of ($15,000.00) fifteen thousand dollars, John O., Thomas H. and George Douglas Sherley, joining in a deed of conveyance, sold and conveyed the real estate mentioned in the two quoted clauses of the will of Zachary M. Sherley, to the widow, Susan M. Sherley, who already was; the owner of a life estate under the will. The deed contained a general warranty of title, and was duly accepted by the grantee, who has been holding and claiming ownership' of the land by reason of the will and the deed since that time. The appellants, as heirs at law of John O. Sherley and Thomas II. Sherley, respectively, are claiming’ an interest in the property, and to enforce their alleged respective rights, instituted this action. Pending the action, the appellee, Susan M. Sherley, conveyed the land to O. C. Ilieatt, and he to the Consolidated Realty Company, and the two latter were, also, made parties to the action, and are, also, appellees here. Susan M. Sherley, Hieatt and the Consolidated Realty Company interposed a general demurrer to the petitions of the appellants. A copy of the will of Zachary M. Sherley, and the .deed of conveyance from the three remaindermen,to Susan M. Sherley were filed with and made a part of the petitions. The court sustained the demurrer, and the appellants declining to further plead, their actions were dismissed and they have appealed.
The appellants contend that the judgment was erroneous, because the interests, which the sons took under the will of the testator, were not present, but were interests contingent upon the survival of the sons until the termination of the life estate, and did not vest until that time, and not having survived until that time, the event never occurred upon which the interests vested and became transmissible by the sons; or if the interests which the sons took under the will became vested upon the death of the testator, the failure to suiwive until the termination of the life estate:, effected a defeasance and defeated their estates; and in the first instance a conveyance by them was a nullity, since they never had a right to the remainder in enjoyment, and in the second instance, though having a vested right, it was defeated by the subsequent condition of their deaths, and the property in remainder descended to the heirs of the testator
Hence, it is apparent that the determining question is whether the sons took an interest in the property under the will of their father, the title to which they could sell and transfer, and their heirs, be bound by their action. It must be conceded that if the interests in remainder under the will vested in the sons at the death of the father, and they sold and conveyed same, their heirs are without any right to the property, unless there was attached to the devise a subsequent condition, that if they did not survive the termination of the life estate, that such fact worked a defeasance of their estates, since a vested remainder is an estate which is susceptible of a sale and transfer of the title, .and will pass by sale, devise or inheritance. If there is no defeasance provided for in the conditions of a vested remainder, or if a defeasance is provided for but the condition does not happen which will create the defeasance, a sale and conveyance by the remaindermen transmit the title to the property, although the time is deferred at which the owner of the remainder can enjoy it.
(1) Preliminary, however, to a discussion of the real question, which determines the rights of the parties, it must be conceded that the testator having unequivocally directed a sale of the property and a division of the
(2) Were the remainder interests in the property, which were devised to the sons, respectively, vested or contingent remainders? A remainder interest in property is vested when there is a person in being who' would have an immediate right to its enjoyment in possession, if the precedent estate .should determine. The much quoted rule, the origin of which is probably lost in antiquity, but was declared by Blackstone and has been adherecí to by the text writers and courts, and is appealed to as denoting the line of distinction between a vested and contingent remainder,- is: “The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant, before the estate limited in remainder determines. ’ ’ Bank of Taylorsville v. Vandyke, 159 Ky. 201; Jailette v. Bell, 33 R. 151; Hackney v. Tucker, 121 S. W. 417; Williamson v. Williamson, 18 B. M. 328; Weil v. King, 104 S. W. 380; Walter v. Crutcher, 15 B. M. 10; Moore v. Sleet, 113 Ky. 600; Williamson v. Maynard, 162 Ky. 726. Chancellor Kent said: “It is not the uncertainty of enjoyment in the future, but the uncertainty of the right to that enjoyment, which marks the distinction between a vested and contingent remainder.” Kent, yol. 1, 206. The fact that the period of enjoyment is deferred to a future time does not prevent the remainder from vesting, if there exists a designated person who has the right to immediately enter into the possession, if the intervening estate should terminate. In the instant case ‘a’life estate is devised to the wife of the testator, and the remainder is devised to the three sons of testator, designating each of them by name. There is no obstacle appearing in the devise, nor is there any reason suggested which would have incapacitated the remaindermen at any time after the testator’s death, from entering into the enjoyment of the estate in remainder, if the life estate had terminated, and their right to have done so is without doubt and cer
(3) The contention that, although the remainder interests were vested in the sons at the death of the testator, their deaths before that of the life tenant, or. before the period at which'the property was to be sold and the proceeds divided between them, worked a defeat of their estates, we do not think is tenable. The soundness of the doctrine, that when the person to whom a remainder, after a life estate or.an estate for a term of years, is limited, is ascertained and the event upon which it is to take effect in enjoyment is certain to concur, and is thus a vested remainder, it may be defeated by the death of the remainderman before the termination of the life estate, is noit disputed, where the terms of the devise provide for such an effect from the death of the remainderman, prior to the termination of the particular estate. UDt will be observed that in the will under consideratiom, there is no term or condition of the devise which would effect a defeasance of the vested estate in the remainder by the death of the remainderman at any time, nor is there 'anything in the language of the devise, or its context, from which it could be inferred that the testator intended that the death of the sons prior to the termination of the life estate would work a defeasance of the interests devised to them. - As before said, no disposition is provided for the remainder interests, in the property, except its sale and the payment of the proceeds to the remaindermen. The remainder is simply devised to the sons by name, and no intimation is made of any condition arising, upon which the estate devised to them would be defeated. Many wills containing devises of precedent particular estates with remainders limited after them, have been before this'court for construction, and our attention has been called to none in which the language and context of the devise were similar in effect to the deviso under consideration, and where it .was held that the remainder was a vested one, it was, also, held that the estate of the remainderman would be
(4) Having concluded that the sons under the will were the owners of a fee simple title to the remainder interests in the property, the right and title thereto having vested in them upon the death of the testator, what effect did their deed to the life tenant in 1880 have? Where there has been an equitable conversion of realty into personalty, by an explicit direction in his. will by a testator for the sale of lands, and the payment of the proceeds by the executor to certain legatees, the beneficiaries may elect to treat the proceeds, which they are to receive from a sale of the lands, as real property, and thereby convert the property back into realty, and take the land in lieu of the proceeds-, provided always that such action does not result in any damage to the owner of- the particular estate, and this doctrine is as well established as the one upon which it was originally converted from realty into personalty. To accomplish this, it is necessary that all the persons who are entitled to receive the proceeds of a sale of the lands, should be, sui juris, able to make an election, and should all concur in some affirmative act denoting the fact that the election has been made. Swan, etc. v. Goodwin, etc., 2 Duv. 298;
The judgment is therefore affirmed.