130 Ky. 663 | Ky. Ct. App. | 1908
Opinion of the Court by
Affirming.
The object of this litigation is to obtain a construction of the following deed:
. “This indenture made this- 18th day of September, 1856, between Wilford N. Rickey and Sallie Rickey, his wife, of the county of Nicholas and State of Kentucky, of the one part, and Lewis Feeback, as trustee for' Catherine Shumate and her children, of the county of Bourbon and State aforesaid, of the other part, witnesseth:
“That the said Wilford N. Rickey and Sallie, his wife, for and in consideration of the sum of sis hundred dollars in hand paid, the receipt whereof is hereby acknowledged, hath granted, bargained and sold, and by these presents do grant, bargain and sell unto Lewis Feeback, as trustee for Catherine Shumate, her heirs and assigns, all that tract or parcel of land situated, lying and being in Nicholas county, Kentucky, on the waters of Panther creek, and bounded as follows, to-wit: (Metes and bound's omitted.)
‘ ‘ To have and to hold the land hereby conveyed with the appurtenances unto the said Lewis Feeback, as*665 trustee for Catherine Shumate, her heirs and assigns forever. And the said Wilford N. Rickey and Sallie Rickey, his wife, for themselves, their heirs, executors and administrators, the aforesaid tract or parcel of land and appurtenances unto the said Catherine Shumate, her heirs and assigns against the claim or claims of all and every person whatsoever, do and will forever warrant and defend by these presents. In witness whereof the said Wilford N. Rickey and Sallie Rickey, his wife, who hereby relinquishes her right of dower in and to the land hereby conveyed in this deed, hath hereunto set their hands and seals the day and year first above written.
“(Signed) W. N. Rickey.
‘ ‘ Sallie Rickey. ’ ’
The particular question for adjudication's whether or not the grantee, Catherine Shumate (now Ogden), took an equitable estate for life, or in common, or in fee simple. The plaintiffs (appellants) contend for either the first or second construction, and the defendant (appellee) for the third.
Appellants’ claim is based upon the fact that the deed in naming the parties thereto states the grantee as “Lewis Feebaek,” trustee for Catherine Shumate and her children, and they insist that the word “children” as used is a word of purchase, and not of inheritance, and therefore the children of Catherine Shumate were beneficiaries of the trust established by the deed, and either took with her as tenants in common or as remaindermen after the expiration of her life estate. On the other hand, the appellee, Filmore Shumate, who is the vendee of Catherine Shumate, insists that, taking the deed as a whole, the word “children” is used as a synonym for “heirs,” and is a word of inheritance, and not of purchase, and therefore Oathe
Applying the foregoing principles to the deed under consideration, we are constrained to the conclusion that Catherine Shumate took an estate in fee simple. It will be observed that in the caption the word ‘ ‘ children” is used as descriptio personae of the trustee; he being described as trustee for Catherine Shumaie and her children. There is no intention shown in this part of the deed to convey an estate to the children of the cestui que trust, Catherine Shumate. So far as anything appears to the contrary, Lewis Feebaek may have been trustee for Catherine Shumate and her children; at any rate, the conveyance was to the trustee, and he was the party named as vendee. But, when we reach those parts of the deed wherein the estate is actually conveyed, the word “children” is not used. The beneficial estate is to Catherine Shumate, her heirs and assigns, or her heirs and assigns forever, as in the habendum. So that, as said before, taking the deed as a whole, we are of opinion that
For these reasons, the judgment of the trial court in construing the deed that Catherine Shumate took an equitable estate in fee must be affirmed; and it is so ordered.