Clay, et. Als. v. Chenault

• Decision Date: 10 March 1900
• Citation: 108 Ky. 77
• Parties: Clay and Others v. Chenault.
• Court: Kentucky Court of Appeals

108 Ky. 77

Clay and Others v. Chenault.

Court of Appeals of Kentucky.

March 10, 1900.

APPEAL FROM MONTGOMERY CIRCUIT COURT.

JUDGMENT FOR DEFENDANT AND PLAINTIFF'S APPEAL. AFFIRMED.

TYLER & APPERSON FOR APPELLANTS.

W. S. PRYOR FOR APPELLANT.

W. G. DEARING FOR APPELLANT.

ED C. O'REAR & ROBT. H. WINN FOR APPELLEE.

JOHN G. WINN FOR APPELLEE.

OPINION OF THE COURT BY JUDGE GUFFY — AFFIRMING.

Anderson Chenault, Sr., died in Montgomery county, after first making and publishing his last will, which was duly probated. Among the devisees were Waller and Anderson Chenault, Jr., to whom, among other things, were devised 275 acres of land in equal shares. Some time after the death of the testator, Waller Chenault died without having sold his interest in the land devised; but by his will he devised said land to his brother for life, with remainder to all the descendants of the testator, Anderson Chenault, except that the share that would otherwise go to W. O. Chenault should go to his children. After the will of said Waller was probated, the appellants instituted this action, seeking a division of the land so devised to appellee, claiming that said land descended to them, and appellee. The appellee, by his answer, claimed to own said land for life, under the will of his brother, Waller, and set up and pleaded said will as defense to appellants' action. Appellants demurred to the answer, as well as moved to strike out so much of the same as pleaded the will of said Waller, which demurrer and motion was overruled by the court; and, appellants failing to plead further, their petition was dismissed, and to reverse that judgment this appeal is prosecuted.

It is the contention of appellants that under the will of Anderson Chenault, Sr., Waller took, at most, only a defeasible fee in the land in contest; that the will of his father provided that if said Waller died without living descendants, said land reverted to the other heirs of said Anderson. It is the contention of appellee that Waller was invested with the fee-simple title to the land. Appellee also contends that the reference to the death of Waller in the will of his father referred to his death prior to the death of the testator.

It will be seen, from the will of Anderson Chenault, which is exceedingly voluminous, that he devised certain property to his wife for life, and also to his daughters for life, with fee to their descendants, if any, and, if none, their shares to revert or pass to his other children. The same provisions, in substance, were made concerning the property devised to his son W. O. Chenault. So much of the will as seems to have any bearing upon the question at issue herein is hereinafter copied. The first reference is item 5, which is as follows: "I own about 275 acres of land, which embraces what is known as my `Peters' Farm,' and my land adjoining it, which tract of 275 acres lies in the vicinity of what is known as `Wilkerson's Blacksmith's Shop,' and which tract of land I give and bequeath equally and jointly to my two sons, Waller Chenault and Anderson Chenault, Jr.; and I charge them for said land at the rate of sixty-six dollars and sixty-six and two-thirds cents ($66.66 2-3) per acre, and for which land at said price per acre my said two sons must be charged and account for in the settlement of my estate; but I reserve the right hereafter, if I think proper to do so, by a codicil here to require my said sons, if they sell said land, to reinvest the proceeds in other lands as I may direct. . . ."

Item 10 reads as follows: "If at the time of the death of any of my children they or any of them shall leave no child, children, or descendants of theirs then alive, then the land, and also any personal property I have devised them which they have not then received, is to revert back to my estate and to become a part and parcel thereof; and such property as may revert back to my estate as is provided herein I give and devise in equal portions to such of my children as are then alive, and to the descendants of any that may be dead, — the descendants of those dead to take the share or part their parent would have taken if alive."

Item 12 reads as follows: "The land I have devised to my sons, Waller and Anderson, they may hold jointly or divide it between them equally according to its quality, quantity, and yearly value."

Item 15 reads as follows: "Whatever, if anything, the land I have given my sons, Waller and Anderson, may lack of amounting at $66 2-3 per acre to $20,720, they are to receive interest on (that is, on the deficiency) from the date of my death until the date of the sale of the 150 acres, and this interest is to be paid out of the money arising from the sale of said 150 acres; and the charges I have placed upon the proceeds arising from the sale of said 150 acres are all to be paid before an equal division of the balance of said proceeds takes place between all my children."

On April 14th the testator executed a codicil of considerable length to his will theretofore made. Item 2 of the codicil reads as follows: "I have recently had some trading and dealing with my two sons, Waller and Anderson Chenault, Jr., and in these transactions I have given and advanced to them jointly one hundred and eighty-two dollars and fifty cents ($182.50), and with which sum I charge them, and they must account for it in the settlement of my estate; and if, as is named in the 15th clause of my will, there may be any deficiency as therein indicated, then the above $182.50 to be applied to its extent in making up such possible deficiency, as is also any other sums that I may pay, give, or advance to them hereafter, and for which I may hold their receipt, and these advancements are to be payments at the time they are respectively made on said possible deficiency, but no interest is to be computed on them, but they are to be deducted as of the date of my death from such deficiency; but, if it shall turn out that there is no deficiency, then they are to be charged with and account for said advancement, or for any overplus that said advancement may make in the aggregate over and above said possible deficiency. By the tenth clause of my will I do not mean or intend to prohibit my two sons, Waller and Anderson Chenault, Jr., or either of them, from selling the land I have devised to them, but I here give them or either of them the right, privilege, and power to sell and convey his part of said land, and make the purchaser a good title thereto; but if the proceeds arising from the sale of the land devised to them by me or to either of them shall at the time of the death of them or either of them be invested in other lands, and they or either of them at the time of their death shall leave no child, children, or descendants then alive, then the said land of both or either one in which said proceeds are invested is to revert back and become a part of my general estate."

Section 2342, Kentucky Statutes, which is an exact copy of section 7, article 1, chapter 63, of the General Statutes, reads as follows: "Unless a different purpose appears by express words or necessary inference, every estate in land created by deed or will, without words of inheritance shall be deemed a fee-simple or such other estate as the grantor or testator had power to dispose of." It will be seen that item 5 is an absolute devise of the land in question, — coupled, however with a reservation of power by the testator in a codicil to require the devisees, in the event of a sale of the land devised, to invest the proceeds in other lands in such manner as the testator might direct. This reserve power seems never to have been exercised, but at most only a direction given as to the land in the event a sale and reinvestment should be made by the devisees. It is provided in item 10 that "if, at the time of the death of any of my children, they shall leave no descendants alive, then the land, and also any personal property I have devised them which they have not then received, is to revert back to my estate and become a part and parcel thereof. . . ." It is argued for appellee that this provision has reference to the death of the devisee before the death of the testator. The above provision of the will is referred to in item 2 of the codicil, and the meaning thereof to some extent explained; and said devisees are clearly authorized to sell or pass a perfect title to the land in question, with the further provision that if the proceeds arising from such sale shall at the time of the death of either be invested in other land, and the devisee shall have no descendants, then the said land in which said proceeds are invested is to revert back and become a part of the general estate.

It will be seen from the foregoing that the said devisees were invested with an unconditional power of sale and conveyance, without any requirement as to the reinvestment of the proceeds, and, beyond question, they could hae sold the land and passed a perfect title thereto, and used the proceeds for any purposes whatever, and in no event could any remainder ever be claimed unless the proceeds were then invested in land at the time of the death of the devisee. It will be seen from the item in question that the provision as to the remainder over in the event of the death of the devisee without issue is specifically confined to the land in which the proceeds of the land devised should then be invested.

It is, however, the contention of appellee that the testator invested Waller Chenault with the fee simple, and that any attempt to control or limit the disposition of the land is repugnant to the fee, and therefore invalid, and we are referred to various authorities in support thereof. It is said in section 270 (12th Ed.) 4 Kent. Comm., that: "At law the grant of a term to a man for life would have been a total disposition of the whole term. Nor can an executory devise or bequest be prevented or destroyed by an...