Brock v. Conkwright
| Decision Date | 01 March 1918 |
| Citation | 179 Ky. 555,200 S.W. 962 |
| Parties | BROCK ET AL. v. CONKWRIGHT ET AL. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Clark County.
Action by Maude Conkwright and husband against T. W. Brock and others. Judgments for plaintiffs, and defendants appeal. Affirmed.
Benton & Davis, of Winchester, for appellants.
Pendleton & Bush, of Winchester, for appellees.
The appellees, Maude Conkwright and her husband, brought this action, in the Clark circuit court, to enforce the specific performance of a contract, in writing, for the sale of a tract of land, situated in Clark county. The appellees executed and offered to deliver to the appellants, T. W Brock and W. H. Brock, in accordance with the contract, a deed with clause of general warranty, purporting to convey to the appellants fee-simple title to the lands in controversy. The appellants, by their answer, signified their willingness to accept a good title to the lands, as they were entitled to have under the contract, and to pay the consideration, but denied the ability of the appellees to make to them a good and sufficient title for the land. The history of the title to the lands held by the appellees is as follows: Sallie E McKinney, the mother of the appellee, Maude Conkwright, was the owner of the lands in the year 1859, and on the 15th day of July, of that year, she prepared with her own hand and executed the following holographic will:
"Knowing the certainty of death and certainty of life and desiring to secure my children my property do make this writing to be my last will and testament, towit:
1st. It is my will after my death that all of my property personal and real be equally divided among my children. If one should die then their proportion of my property should be equally divided among my surviving children.
2nd. If my mother Lucy W. Ferguson should survive myself it is then my wish that she shall hold all my property as trustee for my children.
3rd. At her death it is my wish that all of my property be secured to my children so that neither they nor any one else can spend the principle as the proceeds will be sufficient to support them.
4th. If my uncle Samuel W. Chiles should survive my mother and myself, then it is my will that he take charge of my children and all of their property and be their guardian and protector, and at his death it is my will that he in his judgment shall select some one that will do the same as himself.
5th. If my boys should show that they have good and steady habits after they have arrived to the age of twenty-five then it is my wish for them to have all of the proceeds of their proportion of my property to act upon but for none of my property, negroes or anything else to be carried by them or any one else out of the State of Kentucky.
6th. If my daughters should marry then it is my will that enough be taken from the proceeds of their proportion of my property to keep them comfortable.
7th. It is my will that none of my property above given to my children be taken out of the State of Kentucky. If at any time there should be a refractory servant then it is my will that my mother or uncle, Samuel W. Chiles dispose of such and the proceeds to go for the benefit of my children. It is my will that Lucy W. Ferguson hold all my property both personal and real in trust for my children and at her death for my uncle Samuel W. Chiles to do the same if he survive her.
I have written the above with my own hand hereby revoking all other wills heretofore by me made.
Sallie E. McKinney. [ Seal.]
Acknowledged in the presence of this 15th day of July 1859.
Witnesses John J. Taylor.
Saml. W. Chiles."
In June, 1863, she added the following codicil to her will, and which is numbered as section 8 of the will:
"8th. It is my will and wish that neither my mother Lucy W. Ferguson or my uncle Samuel W. Chiles be compelled to give security as guardian, trustee, or executor as I have an abiding confidence that they will dispence equal justice to all my children.
I have written this with my own hand. This June, 1863.
Sallie E. McKinney."
In the year 1864 Sallie E. McKinney died, and the foregoing will and its codicil was admitted to probate, in the Fayette county court, on the 5th day of October, 1864. The testatrix left surviving her two sons, W. W. McKinney and John F. McKinney, and three daughters, Mrs. Tevis, Mrs. Graves, and the appellee, Maude Conkwright. Thereafter, in the year 1868, by a proceeding in the county court, the lands owned by the testatrix at her death were divided between the five children of the testatrix, and a portion of the lands in controversy was devised to the appellee, Maude Conkwright, under the will of her mother. Thereafter other lands were conveyed to the appellee by a commissioner of the Fayette county court, and the deed of conveyance to her contains the following:
"The portions of land hereby conveyed to John, Maude and William McKinney and Jennie Graves and Lucy W. Tevis are to be taken and held subject to the conditions and limitations contained in the will of Sallie E. McKinney, their mother, which is now of record in the Fayette county court, and subject to the right of Lucy W. Ferguson, as to the use for her life of one-fourth of each of their shares."
The lands embraced in the deed above mentioned constitute a portion of that, which is now in controversy, and hence, to determine, whether the appellees can convey a good title to these lands to the appellants, it becomes necessary to construe the will of Sallie E. McKinney, and to determine what estate the appellee, Maude Conkwright, has in the lands, under the will of her mother.
On the 14th day of May, 1879, John McKinney died, intestate, leaving neither wife nor children surviving him, and leaving, as his only heirs at law, his brothers and sisters, Lucy Tevis, Jennie Graves, W. W. McKinney, and Maude Conkwright. John McKinney was largely involved in debt at the time of his death, and his administrator filed an action in the Clark common pleas court, in which W. W. McKinney, Jennie Graves, Lucy Tevis, and Maude Conkwright were made defendants, and in which a construction of the will of Sallie E. McKinney was sought, the plaintiff alleging that under that will the intestate, John F. McKinney, took a fee-simple estate in the one-fifth portion of the real estate of Sallie E. McKinney, his mother. All of the devisees under the will of Sallie E. McKinney, who are named above, except the deceased, John F. McKinney, filed answers in the suit, in which they did not deny the construction placed upon the will by the administrator of John McKinney, and all joined in requesting the court to construe the will and to determine what estate each of them took under such will. The common pleas court of Clark county rendered a judgment in the above case of John McKinney's administrator against his heirs and creditors, which recited that W. W. McKinney, Maude McKinney, now Conkwright, Jennie Graves and her husband, and Lucy Tevis and her husband, having filed separate answers and consenting and agreeing to the construction of the will asked by the plaintiff, it was adjudged that under the will of Sallie E. McKinney each of her children surviving her took a fee-simple estate in one undivided fifth of the land owned by her at her death, and adjudged that the portion of the lands, which had been set apart to the intestate, in severalty, which had passed under the will of Sallie E. McKinney to the intestate, John McKinney, should be sold in satisfaction of the debts owing by the intestate. There was never any appeal from this judgment, nor was it ever set aside for any reason. It seems to have been rendered in the year 1879.
The court, by the judgment appealed from, adjudged that the appellee, Maude Conkwright, was the owner of the lands with a fee-simple title, and that she and her husband had power to convey a good title to the lands, and ordered that the written contract be specifically performed by the appellants, by the acceptance of the deed and the payment of the purchase price, and from this judgment the appeal is prosecuted.
1. It is now urged that by the judgment in the Clark circuit court above referred to, the court construed the will under consideration as devising the fee-simple title to the lands to appellee, and that, inasmuch as that judgment was never set aside and is now in full force and effect, it is binding upon all other persons with reference to the land. It will be observed, however, that the lands, which are in controversy in this suit, were not in controversy in the suit in the Clark circuit court, nor was the title of the appellee to them or her ability to sell and convey them under consideration or determined. The only question which was before the court for decision in that suit was whether the lands, which John F. McKinney received under the will, could be subjected to the payment of the demands of his creditors. He was the sole beneficiary of those lands, and there was no devise over in the event of his death or in the event of an attempt to subject them to his debts. At his death, such an estate as he had in them, whether legal or equitable, passed to his heirs by the laws of descent, and if it was a trust estate, there was no discretionary power given by the will to the trustee to withhold the beneficial use of it from the cestui que trust, and hence it could be properly subjected to the payment of his debts. Section 2355 Kentucky Statutes; Davidson v. Kemper, 79 Ky. 5; Parson v. Spencer, 83 Ky. 305; Bull v. Kentucky National Bank, 90 Ky. 452, 14 S.W. 425, 12 Ky. Law Rep. 536, 12 L. R. A. 37; Woolley v. Preston, 82 Ky. 415; Knefler v. Shreve, 78 Ky. 297; Bland v. Bland, 90 Ky. 400, 14 S.W....
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