Coots v. Yewell

• Decision Date: 08 March 1894
• Citation: 25 S.W. 597,95 Ky. 367
• Parties: COOTS v. YEWELL et al.
• Court: Kentucky Court of Appeals

25 S.W. 597

95 Ky. 367

COOTS v. YEWELL et al.

Court of Appeals of Kentucky.

March 8, 1894

Appeal from circuit court, Daviess county.

"To be officially reported."

Action by J. W. Yewell and others against John Coots to recover land. From a judgment for plaintiffs, defendant appeals. Reversed.

Sweeney Ellis & Sweeney, for appellant.

Little & Son, Powers & Atchison, and John Feland, for appellees.

PRYOR J.

Jeremiah Yewell, in December of the year 1840, executed a deed to his son Algernon S. Yewell to a tract of land in Daviess county "for and during his natural life, and the remainder in fee simple to the children, heirs, and legal representatives of the said Sidney, to have and to hold the said tract of land and appurtenances to the said Algernon Sidney Yewell for and during his natural life, and remainder in fee simple to descend to and belong and appertain to the children, heirs and legal representatives of the said Sidney Yewell, at his death, as their absolute estate, forever." His son Sidney, at the date of the conveyance, had neither wife nor children, and died childless, without ever having had a child born to him. His father died before Sidney, and, after the father's death, his brothers and sisters, with a view of vesting in Sidney the fee, granted unto him, by a regular conveyance, all their right, title, and interest reversionary or otherwise, to this land. John Yewell, one of the brothers of Sidney, died before the latter, leaving children. Sidney, the life tenant then died, and, having sold and conveyed this land to the appellant, the children of John Yewell brought this action to recover their interest in the land, claiming to have derived title by descent from their grandfather, and that their father had no interest in it. The court below held that, as John Yewell died before the life tenant, (his brother,) his (John's) children took from or through their grandfather, and were entitled to recover as his heirs at law. If the grandfather had survived his son John, the father of these children, in that event John's children would have inherited from their grandfather, because the title was in him, there being no one to take the remainder interest; but the grandfather was dead, leaving John Yewell one of his heirs, together with his brothers and sisters, and they held the title in the same manner their father and the grandfather of these children held it during the continuance of the life estate. This was a contingent remainder in the children of the life tenant, supported by the life estate. There were no children living when the deed was made to Sidney, and none born, and therefore no title ever passed in remainder. The title, it is argued, was in abeyance, resting in nubibus,...