| Ky. Ct. App. | Mar 27, 1942
Affirming.
Following certain specific bequests and directions unrelated to this controversy, R.H. Glover, by the second clause of paragraph 9 of his will, devised his real estate to his grandsons, in the following language:
"I will, bequeath and devise all my personal property not otherwise disposed of herein, and all real estate wheresoever situated to my legal heirs as the law of Kentucky directs. If either of my grandsons should die leaving no issue of the body then the remaining grandson shall have his brother's share as well as his own. This shall apply to real estate as well as personal property."
F.J. Birk and Glover M. Birk, brothers, and admittedly testator's only heirs at law, are the grandsons referred to; and in October, 1934, the former, by deed containing a covenant of general warranty, conveyed to the latter all of his right, title, and interest in and to certain real estate owned by the testator at the time of his death, including a parcel known as 110 E. Fifteenth Street, in the city of Owensboro. This property has been *236 sold by the appellee, Glover M. Birk, to the appellant, J.A. Vittitow, who has declined to accept the tendered deed on the ground that appellee could not convey a fee simple title as he was required to do by the contract of sale; and this proceeding was instituted to determine the rights of the parties and to compel the appellant to accept the conveyance. The Chancellor adjudged appellee to be the owner of the fee simple title to the property and granted the relief sought. Hence, this appeal.
We shall not embrace the opportunity, thus afforded, to discuss the distinctions between remainders and executory devises, or the reasons which gave rise to the invention of the latter. Suffice it to say that, under the well settled law of this State, each grandson took a defeasible, or, as it is frequently denominated, a determinable fee in one-half of testator's real estate. In addition, each acquired an "executory interest" in the lands of the other, which he could convey at will. Kentucky Statute 2341; Clay v. Clay,
As fully substantiating these views, as well as shedding all needed historical light on the subject, see 4 Kent Commentaries, 296, 19 Amer. Jurisprudence, 493, Section 34; McWilliams v. Havely et al.,
Judgment affirmed. *237