Dohoney, &C., v. Taylor
| Decision Date | 20 November 1880 |
| Court | Kentucky Court of Appeals |
| Parties | Dohoney, &c., v. Taylor. |
APPEAL FROM ADAIR CIRCUIT COURT.
I. & J. CALDWELL & WINSTON AND W. P. D. BUSH FOR APPELLANTS.
RHORER & JONES FOR APPELLANTS.
H. C. BAKER, T. C. WINFREY, AND J. R. HINDMAN FOR APPELLEE.
JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.
The question involved in this case is, did Rebecca Wheat, the widow and administratrix of her husband, have the power to make the sale and conveyance of the land in controversy to the appellee. Her husband left a will, in which he divised, by the second clause, to his wife Rebecca, a "tract of about 115 acres of land, near the town of Columbia; also certain named lots upon which his dwelling and storehouse stood, together with other lots and improvements," and then proceeded to devise to her his household and kitchen furniture, beds, bedding, &c., farming utensils, cattle, hogs, &c., and concludes by saying, The third clause directs, that "after the death of my said wife, it is my will that all of the estate given to her for life, and which may remain, be sold upon a reasonable credit, and the proceeds divided as herein directed." By the sixth clause it is provided, that after the death of the widow "all of my estate remaining is to be sold, and the proceeds to be divided into five equal shares," and to pass to his children named. The seventh clause vests his executors, or such of them as qualify, "with full power to sell, and convey a good title to any part of my estate," and "the title to my real estate is hereby vested severally in my executors, so as to enable them, or either of them, to pass the title thereto to a purchaser or purchasers, but for no other purpose, and to no greater extent." The testator owned several other tracts of land that are mentioned in the will, and directed to be sold by the executors.
The executors named in the will declined to qualify, and the widow qualified as administratrix with the will annexed, and sold the land devised to her, or a part of it, to the appellee, and placed him in possession. The devisees claiming the land in remainder, the appellee filed this petition in equity against the widow and devisees, alleging that the conveyance from the widow was by virtue of the will, and intended to be absolute, and the devisees were asserting title. He asked a construction of the will, and that his title be quieted, claiming the right in the administratrix to sell the fee. The will being filed with the petition, a demurrer was interposed, upon the ground alone that the widow held only a life estate, and had no power to sell under the will or by virtue of her qualification as administratrix with the will annexed. An amended petition was filed during the progress of the litigation, in which it is alleged that the adult heirs knew of the sale made by the widow; that the land sold for its full value, and they have received the purchase money. The appellants, the devisees, admit their knowledge of the sale, and say the widow had the right to sell her life estate, but deny receiving any part of the proceeds of sale, or any moneys from the widow, knowing that she had received it from the appellees.
We think it manifest that the widow acquired only a life estate in the lands devised to her by the second clause of the will, and any other construction would divest the widow of any interest in her husband's estate, except the small quantity of personalty devised to her for life.
The power given the executors by the seventh clause of the will to sell and convey any portion of his estate, and vesting them with the title for that purpose, must be construed with the other provisions of that instrument, and does not conflict with a restriction of this power...
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