Garr v. Elble

• Decision Date: 30 January 1895
• Citation: 29 S.W. 317
• Parties: GARR et al. v. ELBLE et al.
• Court: Kentucky Court of Appeals

29 S.W. 317

GARR et al. v. ELBLE et al.

Court of Appeals of Kentucky.

January 30, 1895

Appeal from Louisville chancery court.

"Not to be officially reported."

Action by Edward Garr and others against Theresa Elble and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

L. L Parks, for appellants.

Y. L Burnett, and Lane & Burnett, for appellees.

PRYOR C.J.

This is a familiar record, and presents for the third time the right of the devisees, and the power of the chancellor, to sell the land held under the will of David Blankenbaker. The devisor owned a tract of land, adjoining, the city of Louisville that at the date of his will was unproductive, but anticipating the growth of that city, and an extension of its boundary, by a provision of his will took from his immediate devisees the power of sale. The devise of the land was to his wife for life, with the direction that the land should be divided at her death in a particular mode that seems to have been followed, and that portion of it composed of the western part of the parcel, on the south side of Broadway, he devised to his seven grandchildren for life, with remainder over. By proper proceedings in the court below, a partition in severalty was had among the devisees, and in that division there was conveyed to Silas Blankenbaker, a grandchild, for his natural life, a small parcel of this land, remainder in fee to his issue, and, if he died without leaving issue, then the one-half of the remainder in fee to the surviving grandchildren, etc.,-in other words, the conveyance to Silas followed the language of the will. The devise was to his grandchildren for life, remainder to their issue, and, if dying without issue, the one's portion thus dying to pass (one-half) to the surviving grandchildren, or their issue, and the other half to the two sons of the testator. It is plain, we think, there was a vested estate in the children of the grandchildren by the terms of this will, if any, living, subject to be divested in the event they were dead, without children, at the death of the life tenant. Silas, however, had no children, and was somewhat advanced in years when he instituted this action, to have the parcel of eight acres allotted to him sold under the will of his grandfather. To his petition he made the two sons of the testator defendants, and also made all the grandchildren, or all those who would have taken and owned the...