Commonwealth, &C. v. Clark, &C.

• Decision Date: 17 November 1904
• Citation: 119 Ky. 85
• Parties: Commonwealth, &c. v. Clark, &c.
• Court: Kentucky Court of Appeals

Page 85

119 Ky. 85

Commonwealth, &c. v. Clark, &c.

Court of Appeals of Kentucky.

November 17, 1904.

APPEAL FROM LEWIS CIRCUIT COURT — JAMES P. HARBESON, CIRCUIT JUDGE.

JUDGMENT FOR DEFENDANTS AND PLAINTIFFS APPEAL. AFFIRMED.

W. C. HALBERT, R. D. WILSON & L. W. ROBERTSON, FOR APPELLANTS.

THOS. R. PHISTER, E. L. WORTHINGTON AND SAMUEL J. PUGH, FOR APPELLEES.

OPINION OF THE COURT BY JUDGE SETTLE — AFFIRMING.

Elizabeth M. Bedford died February 20, 1860, domiciled in Lewis county, leaving a will which was duly admitted to probate. Her son and only child, Robert Bedford, was named and appointed therein as executor without security, and qualified as such. Such parts of the will as bear upon the questions presented for our consideration by the record herein are as follows:

"First. I give and bequeath to my son, Robert Bedford, all of my lands in Lewis county, to have and to hold during his natural life. If said Robert Bedford should die leaving a child or children of his own body, then those lands are to go to those children and their heirs forever.

"Second. I give and bequeath to my son, Robert Bedford, all the lands and other property I own in the county of Nicholas, to have and to hold during his natural life."

"Fourth. In case my son, Robert, dies leaving children of his own natural body, I give and bequeath all my lands to them and their heirs forever.

"But if my son dies without a child or children, then I desire that all my lands in Lewis and Nicholas be sold, and the money arising from said sales I give and bequeath to the State of Kentucky forever in trust; that the said State will forever hold the same for the use and benefit of the children of the State; that the said State will invest said money in some profitable bank stock, and the profits therefrom I desire to be appropriated annually forever toward the education of the children of the State of Kentucky, particularly the poor and most unenlightened. I desire that this money constitute a permanent school fund, and the interest from this fund to be appropriated annually towards the education of the children of this State."

The testatrix owned at the time of her death, in fee simple, a tract of 343 acres of land situated in Lewis county, one of 300 acres in Nicholas county, and an undivided one-fifth interest in 460 acres in Nicholas and Robertson counties. In addition to these lands, she had in possession, under a title bond from H. C. Bedinger, 452 acres lying on the Ohio river, at the mouth of Quick Run creek, in Lewis county. Robert Bedford survived his mother 27 years, and died testate in Mason county, Ky., where he then resided, December 23, 1887. His will was probated in the Mason county court February 14, 1888. He died without issue, and by his will devised all his estate to his wife, Susan Bedford, who survived him. It does not appear that the estate of Elizabeth M. Bedford was settled by Robert Bedford, executor; and after his death T. S. Clark, was by order of the Lewis county court appointed administrator thereof, with the will annexed, and duly qualified as such. Thereafter he brought suit in the Lewis circuit court to obtain a decree for the sale of the lands owned in fee simple by Elizabeth M. Bedford at the time of her death. The Commonwealth of Kentucky and its then agent, G. S. Wall, were made parties to the action, together with the brothers and only heirs at law of Elizabeth M. Bedford. An answer was filed for the State by its agent, wherein claim was set up by it to the proceeds of the lands under and by virtue of the will of Elizabeth M. Bedford, and consent given to accept it as a trust for and on behalf of the children of the State. Susan Bedford, widow and sole devisee under the will of Robert Bedford, also filed an answer in the action, which was made a cross petition, and in which it was insisted that the devise in the will of Elizabeth M. Bedford to the State of Kentucky for the education of its children was so vague and uncertain as to make it absolutely void, for which reason the absolute title to the lands sought to be sold vested in her husband, as the only child and heir at law of the testatrix, and at his death in her by the provisions of his will. The chancellor adjudged, however, that the State of Kentucky was entitled, after the death of Robert Bedford, the life tenant, to the proceeds of the lands described in the petition, under the devise in the will of Elizabeth M. Bedford, and directed its payment to the State's agent. From that judgment an appeal was taken by Susan Bedford, but it was affirmed by this court, and the validity of the devise to the State upheld. Bedford, etc., v. Bedford's Adm'r, etc., 99 Ky., 273, 18 R., 193, 35 S. W., 926.

The tract of 452 acres lying on the Ohio river, at the mouth of Quick Run creek, in Lewis county, was not mentioned or sold in the action referred to. This tract was purchased by Elizabeth M. Bedford of her brother H. C. Bedinger, in 1833, for $3,700 cash in hand paid, and was then supposed to contain 470 acres. At the time of its purchase Bedinger executed to her a title bond, wherein the land was particularly described, the payment of the full consideration acknowledged, the undertaking expressed that the possession of the land would be delivered to the vendee December 1, 1833, and that a deed of general warranty conveying the same would be executed and delivered to her by the vendor on or before August 1, 1834. Possession of the land was delivered at the time stipulated in the bond, but the vendor, Bedinger, before the arrival of the time fixed for the execution of the deed, removed to, and became a resident of, the State of Missouri, where he died in 1847, without having executed a deed to his vendee. On October 12, 1857, Elizabeth M. Bedford brought suit in the Lewis circuit court against the children and heirs at law of her vendor, H. C. Bedinger, setting forth her purchase of the land, the payment by her of the purchase money, and the covenants of the title bond, which was filed with the petition, and prayed a specific performance of the contract by the execution to her of a proper deed upon the part of the heirs at law of the vendor. The heirs filed answer admitting the sale of the land upon the terms contained in the title bond, and the payment of the purchase money, and expressed their willingness to execute the deed demanded, but averred that the vendee, under color of the title bond, was claiming and holding more of their father's land than had been sold to her. For the purpose of recovering the alleged excess of land, or its value, the answer was made a counterclaim against the plaintiff, and judgment asked against her. It however, later appeared from a survey of the land described in the title bond, made at the instance of the defendants, that, instead of an excess, there was a shortage, in the quantity. In other words, it was found that instead of there being 470 acres in the tract, as expressed in the title bond, it contained only 452 acres, 2 rods, and 18 poles.

During the pendency of the action, and before a judgment was entered therein, the death of Elizabeth M. Bedford occurred, as hereinbefore stated. In June, 1860, this fact was suggested to the court, and an order of revivor entered; and at the succeeding term Robert Bedford filed an amended petition and answer to the counterclaim, in which he set forth the fact that he was the sole devisee under the will, and the only child and heir at law of the testatrix, and asked that the suit be prosecuted in his own name and for his own use.

In June, 1863, a judgment was entered in the cause by agreement of parties, whereby the commissioner was ordered to execute a deed conveying him the land in fee simple, which was done accordingly, and the deed put to record June 6, 1863. The land was held by Robert Bedford under this deed until his death, which occurred December 23, 1887, and after his death Susan Bedford, his widow and sole devisee, held it, under and by virtue of the provisions of his will, until her death, in 1899, though on October 11th she, by deed of general warranty, conveyed it, together with a more valuable tract in Mason county, to her nieces, Nettie Pogue and Carrie E. Clark, and their husbands; reserving however, to herself the control, use, and profits thereof during her life. Susan Bedford never had any children, but had reared the two nieces to whom, and their husbands, respectively, the land was conveyed by her as stated. The lands thus conveyed them were jointly held by the grantees after the death of Susan Bedford until March 20, 1900, at which time they agreed that Clark and wife should take and own the 452 acres at the mouth of Quick Run creek, in Lewis county, and Pogue and wife the land in Mason county, and pay Clark and wife $5,000 in cash, which was done, and deeds to that effect were passed between the parties.

This action was instituted January 3, 1902, by the appellants, Commonwealth of Kentucky and R. D. Wilson, its agent, against the appellees, T. S. Clark, Carrie E. Clark, his wife, B. F. Jackson, Chas. Variers, John D. Hendrickson, and C. B. Liles, to recover possession of, and quiet its alleged title to, the 452 acres of land situated on the Ohio river, at the mouth of Quick Run creek, in Lewis county. The petition, as amended, contained the averments that the land mentioned was by the will of Elizabeth M. Bedford, deceased, devised to her son, Robert Bedford, for life, with remainder, in the event of his dying without issue, to the Commonwealth of Kentucky, in trust for the education of the poor children of the State; that, though Robert Bedford survived his mother many years, he remained and died childless, by reason of which the title to the land in question vested in the Commonwealth in trust for the education of the poor children of the State; and that the appellees were wrongfully holding the possession of the land, and claiming it as their own. Besides...