90 Ky. 117 | Ky. Ct. App. | 1890
delivered the opinion op the court.
London Ferrell willed to Elizabeth Jackson certain real estate situated in the city of Lexington, and to Eleazer Jackson certain other real estate situated in .said city. The said estate was devised to each devisee in fee, but the same was subject to the defeasance that if either devisee should die, before or after the death of the devisor, without leaving lawful issue, or the descendants of such issue, the estate devised to such devisee should go to the other devisee, and if both .should die, before or after the death of the devisor, without leaving lawful issue, or the descendants of such issue, then the estate devised to both should be sold, and the proceeds divided between the First Colored Baptist Church of Lexington, Morton City School and the Orphan Asylum of Lexington — one third to each.
Eleazer Jackson died without having left surviving him living issue, or the descendants of such issue; consequently, Elizabeth Webb, formerly Jackson, took Eleazer" s part of the estate. Said Elizabeth had one •child by her husband, the appellant, which died in infancy, and some time thereafter the mother died, without having had any other child or children.
This suit was instituted by the appellees to have said property sold, and the proceeds divided among them in accordance with the provisions of the will.
It is too plain for 'serious -controversy that Eleazer and Elizabeth took, under said will, a fee subject to be defeated by their -deaths without leaving living lawful issue, or the descendants of such issue, in which event the appellees took the estate. There are
This question is settled by this court in the case of Northcut, &c., v. Whipp, &c., 12 B. M., 71, in the affirmative. We are not now disposed to disturb that decision.
Under a decree of the Payette Circuit Court a part of this land was sold, at the instance of the appellant and Elizabeth, for the purpose of investing the proceeds in a small tract of land situated in the State of Ohio for the benefit of the said Elizabeth, and to be held by her under the provisions of the will and in accordance with it. Said land in Ohio belonged to the appellant, and he received the money that Elizabeth’s land sold for as the consideration for the conveyance of his Ohio land to her. A deed was made to Elizabeth for this Ohio land, but the same was not recorded in the State of Ohio. Afterwards the appellant mortgaged this Ohio land to third parties to secure his indebtedness to them, which indebtedness he has never paid. The chancellor, in this case, put the appellant’s curtesy right in the Lexington property in the hands of a receiver, to be rented out by him, and the proceeds, applied to the payment of such indebtedness until
The judgment is-affirmed.