Dohoney v. Taylor

• Decision Date: 20 November 1880
• Citation: 1 Ky.L.Rptr. 415,79 Ky. 124
• Parties: Dohoney, & c., v. Taylor.
• Court: Kentucky Court of Appeals

79 Ky. 124

1 Ky.L.Rptr. 415

Dohoney, & c., v. Taylor.

Court of Appeals of Kentucky.

November 20, 1880

1. It is manifest that the widow of the devisor acquired only an estate for life in the lands devised to her by the second clause of the will.

2. The power given to the executors by the seventh clause to sell and convey any portion of the devisor's estate must be construed with the other provisions of the will.

3. The meaning of the testator is, " the executors are vested with the title to sell certain tracts of land I have directed to be sold, without restriction or limitation; but the land devised to my wife is to be sold after her death, and the proceeds distributed as directed by me."

4. His intention was to give her a home for life, and that after her death the land should be sold.

5. The widow had no authority to sell any greater interest than her life estate.

6. There is no evidence that appellants consented to or acquiesced in the sale of the lands by the widow.

APPEAL FROM ADAIR CIRCUIT COURT.

I. & J CALDWELL & WINSTON AND W. P. D. BUSH FOR APPELLANTS.

1. By the second clause of the will, the widow took the 115 acres of land for and during her lifetime, and not in fee.

2. The power given to the executors by the seventh clause of the will to sell decedent's lands cannot have any reference to land devised to the widow, for that would deprive her of her estate in the land, if the executors determined to sell it.

3. The widow as administratrix with the will annexed could have no greater power than the executors appointed by the will, if they had qualified.

4. The will must be so construed as to harmonize all its parts ( Daniel v. Thompson, 14 B. Mon., 663; Moran v Dillehay, 8 Bush, 437), and so as to give effect to all its provisions (Baird v. Rowan, 1 Mar., 217; Morse v. Cross, 17 B. Mon., 740; 3 Met., 159), and so as to carry out the testator's intention (Adie v Cromwell, 3 Mon., 279; 12 B. Mon., 47; 9 Ib., 323; 4 Maddox's Ch'y Rep., 30; Sugden on Powers, 139, 334; 1 Jac. & Walk., 189; 3 Adol. & Ell., 442; 3 Atk., 117).

RHORER & JONES FOR APPELLANTS.

It is clear that Rebecca Wheat, the widow, has attempted to do what could only be done by an administrator with the will annexed after her death. She had no more than a life estate, under the second clause of the will. This she might have lawfully conveyed, but no more. (Sec. 17, chap. 63, Gen. Stat.)

H. C BAKER, T.C. WINFREY, AND J. R. HINDMAN FOR APPELLEE.

1. The widow, Rebecca Wheat, as administratrix with the will annexed, intended to convey, and did by her deed convey, the fee-simple title to the 115 acres of land to J. G. Taylor. The deed is not made as widow, but in her fiducial capacity.

2. The second clause of the will gave to the widow an absolute interest in the land. Had the executors qualified, undoubtedly they, with the consent of the widow, could have made a complete title to it. She had, as administratrix with the will annexed, the same power. (Sec. 9, chap. 37, Rev. Stat.; Sec. 9, chap. 39, Gen. Stat.; 8 Bush, 62; 3 Dana, 195; 6 Ib., 117; 2 Ib., 80; 7 Ib., 8; 2 Duv., 27; 8 Bush, 602; Gen. Stat., sec. 13, chap. 39; Rev. Stat., sec. 13, chap. 37; 8 Bush, 602; 4 Ib., 32; Ib., 166.)

3. The devisees knew of the sale, and are estopped to question it. ( 5 J. J. Mar., 569; 3 B. Mon., 175; 6 Ib., 113; 8 B. Mon., 542; 3 Bush, 490; 6 Ib., 530; 4 Mon., 442; 2 Dana, 11; 6 Mon., 505; 12 B. Mon., 494; Ib., 612; 7 Ib., 180; 7 Bush, 27, 44.)

OPINION

PRYOR JUDGE:

The question involved in this case is, did Rebecca Wheat, the widow and administratrix of her husband, have the power to make the sale and conveyance of the land in controversy to the appellee. Her husband left a will, in which he divised, by the second clause, to his wife Rebecca, a " tract of about 115 acres of land, near the town of Columbia; also certain named lots upon which his dwelling and storehouse stood, together with other lots and improvements," and then proceeded to devise to her his household and kitchen furniture, beds, bedding, & c., farming utensils, cattle, hogs, & c., and concludes by saying, " the foregoing mentioned articles are given to my said wife for and during her natural life, and then to return to my estate, except such of it as may be consumed in its use. I give to my said wife, in addition to the before mentioned property, one third of the proceeds of any personal estate which may remain after paying my debts. This last is an absolute gift." The third clause directs, that " after the death of my said wife, it is my will that all of the estate given to her for life, and which may remain, be sold upon a reasonable credit, and the proceeds divided as herein directed." By the sixth clause it is provided, that after the death of the widow " all of my estate remaining is to be sold, and the proceeds to be divided into five equal shares," and to pass to his children named. The seventh clause vests his executors, or such of them as qualify, " with full power to sell, and convey a good title to any part of my estate," and " the title to my real estate is hereby vested severally in my executors, so as to enable them, or either of them, to pass the title thereto to a purchaser or purchasers, but for no other purpose, and to no greater extent." The testator owned several other tracts of land that are mentioned in the will, and directed to be sold by the executors.

The executors named in the will declined to qualify, and the widow qualified as administratrix with the will annexed, and sold the land devised to her, or a part of it, to the appellee, and placed him in possession. The devisees claiming the land in remainder, the appellee filed this petition in equity against the widow and devisees, alleging that the conveyance from the widow was by virtue of the will, and intended to be absolute, and the devisees were asserting title. He asked a construction of the will, and that his title be quieted, claiming the right in the administratrix to sell the fee. The will being filed with the petition, a demurrer was interposed, upon the ground alone that the widow held only a life estate, and had no power to sell under the will or by virtue of her qualification as administratrix with the will annexed. An amended petition was filed during the progress of the litigation, in which it is alleged that the adult heirs knew of the sale made by the widow; that the land sold for its full value, and they have received the purchase money. The appellants, the devisees, admit their knowledge of the sale, and say the widow had the right to sell her life estate, but deny receiving any part of the proceeds of sale, or any moneys from the widow, knowing that she had received it from the appellees.

We think it manifest that the widow acquired only a life estate in the lands devised to her by the second clause of the will, and any other construction would divest the widow of any interest in her husband's estate, except the small quantity of personalty devised to her for life.

The...