174 Ky. 688 | Ky. Ct. App. | 1917
Opinion of the Court by
Affirming.
Nancy Snelling, a resident of Kenton county, died in the year 1914, leaving a will by which she directed that her home, consisting of 314 acres, be sold and the proceeds held in trust for the support and maintenance of her husband, Frank Snelling. She further directed that upon the death of her husband the remainder of the proceeds should go to her sister, Mary F. Hinkle, but if Mary F. Hinkle should then be dead, the proceeds should go to her daughter, Luna B. Wilson.
The Equitable Bank & Trust Company was appointed administrator with the will annexed, and as such brought this suit against F. W. Ray and Serilda Webster, two of testatrix’s creditors, for the purpose of selling the home under the will. Mary F. Hinkle was also made a party plaintiff. Subsequently the property was sold and Maurice L. Galvin became the purchaser. His exceptions to the report of sale having been sustained, plaintiffs appeal.
It appears that when the will in question was offered for probate it was rejected by the county court. On appeal to the circuit court the jury found that the paper in question was the last will and testament of Nancy Snelling, deceased, and judgment was rendered accordingly on June 25, 1915. The sale took place on February 21, 1916, pursuant to an order entered November 30, 1915. The will was not probated or recorded until May 17, 1916. Here, then, we have a case where a suit was brought by the administrator with the will annexed to sell property under the will. When the administrator with the will annexed was appointed the will had not been probated, nor had it been probated when the suit was brought, or the judgment of sale was rendered or
But the point is made that because Mary E. Hinkle, who alone had title to- the property, was a party plaintiff, the judgment of sale was binding on her and, therefore, passed a good title to the purchaser. The difficulty with this contention grows out of the fact that, under the will, Mary F. Hinkle was not entitled to the proceeds of the .property until the death of Frank Snelling, the husband of the testatrix. Hence the allegation of the petition that Mary F. Hinkle was the sole devisee under the will is a mere legal conclusion contradicted by the will itself, and is not sufficient to show that Mary F. Hinkle is entitled to the entire proceeds of the property, in the absence of an averment that Frank Snelling was dead. It not appearing that Mary F. Hinkle was the sole owner of the property, we cannot uphold the sale on the ground that the purchaser acquired a good title merely because she was a party to the action.
Being of the opinion that the purchaser did not acquire a good title by virtue of the proceedings in question, it follows that his exceptions to the report of sale were properly sustained.
Judgment affirmed.