Fletcher, &C., v. Tyler, &C.

• Citation: 92 Ky. 145
• Parties: Fletcher, &c., v. Tyler, &c.
• Decision Date: 20 October 1891
• Court: Court of Appeals of Kentucky

92 Ky. 145

Fletcher, &c., v. Tyler, &c.

Court of Appeals of Kentucky.

October 20, 1891.

APPEAL FROM DAVEISS CIRCUIT COURT.

J. A. DEAN FOR APPELLANTS.

R. W. SLACK OF COUNSEL ON SAME SIDE.

WILFRED CARRICO FOR APPELLEE.

JUDGE BENNETT DELIVERED THE OPINION OF THE COURT.

This action was brought by the appellees against the appellants to subject the supposed interest of the appellant, Woodson Fletcher, in a house and lot in the city of Owensboro to the satisfaction of their judgment against him.

The granting clause of the deed, by which said lot is held, is as follows: "This indenture made and entered into this, the 28th day of May, 1851, by and between O. F. Stirman of one part and Chloe Ann Fletcher and the heirs of her body by Woodson Fletcher upon her begotten, for and in the consideration," etc. (naming the consideration), "do hereby sell and convey to Chloe Ann Fletcher and the heirs of her body aforesaid," etc.

It is a fact that the appellant, Woodson Fletcher, husband of Chloe Ann Fletcher and the father of the then born children of her body and of her children thereafter born, bought and paid for said house and lot for the benefit of his said wife and children. It is also a fact that the purchase thus made, he not being indebted at the time, was not a fraud upon his creditors nor was it intended to be a fraud upon them. Chloe Ann Fletcher, the wife, and some of the children who were living at the time of the conveyance, and some of those that were born after the conveyance, having died, and the lower court having decided that said wife and the then living children took a present joint estate in fee in said land, and that the appellant, Woodson Fletcher, having inherited the interests of those that had died, etc., said interests were subject to the appellee's demand, etc., the appellants have appealed from that judgment.

The sole question necessary to be determined is, what estate did Chloe Ann Fletcher and the heirs of her body take by said deed? The lower court thought that the case of Tucker, &c., v. Tucker, &c., 78 Ky., 503, controlled the case; hence, it held that Chloe Ann Fletcher took a joint estate in fee with said living children. The appellants contend that Chloe Ann Fletcher took a life estate only and all of said children took an estate in remainder. We concur in the latter contention.

In the case of Smith v. Upton, 12 Ky. Rep., 27, the conveyance was made "to Mrs. Smith and her children" by Upton, the consideration moving...