117 Ky. 547 | Ky. Ct. App. | 1904
Opinion op the court by
Reversing.
The will of Joseph Bruen, probated in Fayette county, this State, in 1848 gave his estate to his three daughters (after provision for his wife). He gave to each daughter her portion, to her sole and separate use during her life; and after her death to her surviving children in fee simple; but that, if any daughter died without issue, her por
Mrs. Cronley died a year' or so ago, leaving a will, the principal if not the sole effect of which was to dispose of her estate derived from her husband, Edward Cronley. In this suit to settle and partition Mrs. Cronley’s estate brought by her executor, the executor and the heirs of the Ingles branch claim that by her deed made in 1870 appellant conveyed to Mrs. Cronley the remainder
While the common law originally admitted of no estate in personal property, regarding its title as its possession, ■as inseparable, yet that distinction has long, been obsolete, and now life estates and remainders may be created in personal property. Language which would create a life estate and a reversion or remainder in lands may, with equal assurance, sever the title to personal property, giving it for a term or life to one, with the remainder to others, upon the same contingencies as land is devised, guarding always against perpetuities. How far certain remote and contingent interests thus created in personal estate are the subject of conveyance by deed or executed contract is, and from the beginning has been, a troublesome question. The same difficulty naturally existed concerning the conveyance of similar interests in real estate. And they would .arise more frequently and were far more important then, because generally it was the title to real estate only that was subjected to such limitations. Not for a long while afterward were they allowed as to personalty. The early cases — and, indeed nearly all the cases and texts — hold that such interests,
An executory devise is such a limitation of a future interest in lands or personal chattels as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at common law. Freame, Rem. (7th Ed.) 386; 2 Bl. Com. 172. It was defined in Paterson v. Ellis, 11 Wend. (N. Y.) 278, as being “a devise of a future interest in lands or chattels, not to take effect at the testator’s death, but limited to arise upon some future contingency.” Unlike a remainder, it requires no particular estate ■to support it (Burleigh v. Clough, 52 N. H. 273, 13 Am. Rep., 23), and may be limited upon a fee. It is not called an estate. In truth it is not. It is an interest, dependent upon the happening of one or more contingencies to ripen it into an estate. It is an expectancy, something more than an heir presumptive has.
The interest of the remaindermen is more tangible. It is certain and fixed, resting upon a particular estate, and to become dominant upon the happening of a contingent event. In this case the interest of Mrs. Stalleup, when first created, was thus: (1) If Mrs. Cronley should die without issue; (2) if Mrs. Shelby should die leaving no issue save
The common law did not allow the conveyance or creation of such interest, except by will, and the statute has not authorized it. But equity did for many purposes treat such conveyances or contracts as equitable assignments, and as such enforced them. In Grayson v. Tyler’s Adm’x, 80 Ky., 362, 4 R., 187, it was said: “The doctrine of the common law that is a contingent remainder can not be passed or transferred by a conveyance at law before the contingency happens otherwise than by way of estoppel by fine, or by a common recovery; but contingent estates were assignable in equity. See Freame on Remainders, p. 366.” That' was a case where a contingent remainderman, having such an interest in personal estate under will, had for value assigned it, and the assignment was upheld and enforced. Chancellor Kent, in his Commentaries (vol. 4, 262), says: “All contingent and executory interests are assignable in equity, and will be enforced if made for a valuable consideration.” ■Speaking of the contract to sell an executory devise, Story’s Equity Jurisprudence, vol. 2. section 1040b, says: “Until •the event has happened, the party contracting to buy has nothing but the contingency, which is a very different thing •from the right immediately to recover and enjoy the property. ... It is not an interest in the property, but a
• We do not regard the fact that the deed was made to a trustee affects the question at all. The sole purpose of making the conveyance to a trustee, instead of to Mrs. Cronley direct, was to create a separate estate in her. That fact manifestly could not have any bearing upon the transmissibility of the interest attempted to be assigned. The case of Williamson v. Yager, 91 Ky., 282, 13 R., 273, 15 S. W., 660, 34 Am. St. Rep., 184, is relied upon by appellee as holding a contrary doctrine. But in that case the question was not as to the effect of placing the title in a trustee
The judgment of the circuit court denying to appellant ■the whole of the one-half of the personal estate owned by decedent and held by her trustee, derived under Joseph Bruen’s will is reversed, and cause remanded for proceedings not inconsistent herewith.
Petition for rehearing by appellee overruled.