Gray v. Gray

• Decision Date: 15 June 1945
• Citation: 300 Ky. 265
• Parties: Gray et al. v. Gray et al.
• Court: United States State Supreme Court — District of Kentucky

300 Ky. 265

Gray et al. v. Gray et al.

Court of Appeals of Kentucky.

June 15, 1945.

1. Wills. — Where will devised a life estate to seven nieces and nephews jointly with succession in the others as they should severally die, and devised remainder over to their respective descendants who took subject to the same conditions as to occupancy and use and the same restrictions on alienation and the limitation that "no fee shall vest" in any of them until after all the life tenants shall have died, will was construable as meaning that the absolute or fee-simple title should vest only in such descendants as may have survived the last life tenant, "descendants" meaning children, grandchildren, etc., so that the nieces and nephews received only a life estate subject to the restraints specified, and their respective descendants a succeeding life estate plus a defeasible fee in remainder.

2. Wills. — A "defeasible fee" is one in which a person becomes invested with a fee simple title subject to be divested upon the happening of some contingency provided in the will as by death before the time fixed for the taking effect of the devise.

3. Remainders. — There cannot be a merger of a life estate and a defeasible fee in remainder.

4. Perpetuities. — The statute against perpetuities applies only to the suspension of the ultimate vesting of an estate, and not to any restraint on right or power of alienation of an estate already vested or which is, or but for the restraint would be, indefeasible. KRS 381.220.

5. Perpetuities. — A partial restraint against alienation or one for a reasonable period of time but beyond the life of the grantee or devisee is valid. KRS 381.220.

6. Perpetuities. — If a condition of will or conveyance unreasonably limits the number or class of persons to whom property may be aliened, it is invalid.

7. Wills. — Under terms of will by which testator devised realty to wife for life then to seven nieces and nephews for life, testator gave life estate to the seven nieces and nephews jointly following life estate of testator's widow, and then life estate to each child born to the seven or his issue jointly per stirpes to become vested estate in those living at death of the last survivor of the seven.

8. Perpetuities. — A restraint in will in respect of time on power of alienating a life estate is valid.

9. Perpetuities. — There may be a valid restraint in will on the class of alienees of a life estate.

10. Wills. — Under a will placing restraints on alienation by life tenants, if any life tenant should convey his interest in violation of the restraints, or join in a deed therefor, his conveyance would only be voidable where there was no provision for cesser or forfeiture.

11. Perpetuities. — Where testator devised realty to wife for life and then to seven nieces and nephews for life and provided that any tenant might sell or lease his interest to any co-tenant, but not to any other person, and that, if niece or nephew died leaving descendants, they should take place of the parents, but no fee should vest in any descendant until all the nieces and nephews had died, the restraints on the life estates were valid but the restraints on the power of alienation of the defeasible fee in remainder were unreasonable both in respect of time and of grantees and were invalid.

12. Wills. — Testamentary provision that seven devisees were to occupy and use farm together was to be given a practical interpretation, and the requirement was to be regarded as constructive, not actual, occupancy.

Appeal from Mercer Circuit Court.

C.E. Rankin for appellants.

Keenon & Odear and Chas. S. Matherly for appellees.

Before K.S. Alcorn, Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Reversing.

The late J.H. Gray executed a long and meticulous will on May 5, 1904. For the most part he devised his estate to his wife for life. He never had any children. One of his brothers was Charles Gray, who had seven children whose ages at the time the will was written ranged from seven to seventeen years. The sixth clause of the will is as follows:

"On the termination of my wife's tenancy by death or remarriage I will my said real estate to my brother Charles' children now living to-wit: Robert Henry, Emily, Charles Monroe, known as Roe, James Phillip, Mary Fanny, and Mazie during their lives, they to be joint tenants of said land and they are to occupy and use the same together. Any one of them may sell or lease his interest in said land to any of his co-tenants, but no one shall lease or sell any interest to any other person than one of said children or their decendants as hereinafter provided.

"If any one of my said nieces or nephews die either before or after my death, and leave no living descendants his interest shall vest in those living under the same conditions as above. Should any one of said children die leaving descendants the said descendants shall take the place of its parents, but no fee shall vest in any descendant until after all of my nieces and nephews above named shall die, when that event happens the title to said real estate shall vest in the descendants of my said nieces and nephews according to their legal rights."

During the thirty years intervening between the execution of the will and the death of the testator, in 1934, Gray executed four codicils, his brother having died and other changes occurring during the period. But the sixth clause was not modified in any way. The widow died December 30, 1943, without having remarried. In construing this part of the will, the circuit court adjudged: The seven nephews and nieces each take a life estate. Upon death, his or her share then passes to his or her descendants, if any; if none, then to the surviving nephews and nieces. The descendants, if any, take the property with the same limitations as to sale or lease imposed upon the share of his ancestor. Any nephew or niece or successor descendant may sell or lease his or her share to any other nephew or niece or successor descendant and not to anyone else; but the conveyance or lease shall have no effect beyond the death of the last surviving nephew or niece. Upon the death of the last survivor, the title to the land shall vest in fee in the descendants of the nephews and nieces per stirpes. Should any of them die leaving descendants and they should die without surviving issue before the death of the last nephew or niece, then and in that event the share in fee that would have otherwise passed to such descendant shall lapse.

All of the nephews and nieces and their adult children seek a reversal of the judgment, and to have the will construed so that the limitations upon the use and title of a farm of 140 acres shall be declared invalid, or, alternatively, so construed that a conveyance by a nephew or niece to another of the class would give the grantee a fee simple title. Only the guardian ad litem for the infants appears in opposition.

We are not authorized to say that the testator intended the limitation over to be merely that if any one of his nephews or nieces dies without having sold his or her share or right in the property, it passes to his or her issue in fee. We are not authorized to delete the limitations which testator placed upon the bequests or to nullify his clear statements that; "no fee shall vest in any descendant until after all of my nieces and nephews above named shall die" and "when that event happens the title to said real estate shall vest in the descendants of my said nieces and nephews according to their legal rights."

There is no doubt that the word "descendants" as used in this will is to be regarded as children, grandchildren, and so on. Holloway v. Brown, 181 Ky. 716, 205 S.W. 925.

The will clearly devises a life estate to the seven nieces and nephews jointly, with succession in the others as they shall severally die, and devises the remainder over to their respective descendants, who take subject to the same conditions as to occupancy and use and the same restrictions on alienation, and also the limitation that "no fee shall vest" in any of them until after all the life tenants shall have died. We construe this latter clause as meaning that the absolute or fee-simple title shall vest in only such descendants as may have survived the last life tenant. To state it conversely: Each descendant was given a remainder in fee subject to be defeated by his antecedent death, i.e., a defeasible fee in remainder. A defeasible fee is defined as one in which a person becomes invested with the fee-simple title subject to be divested upon the happening of some contingency provided in the will, as by death before the time fixed for the taking effect of the devise. Wills v. Wills, 85 Ky. 486, 3 S.W. 900; Forsythe v. Lansing's Ex'rs, 109 Ky. 518, 59 S.W. 854; Dodd v. Scott, 145 Ky. 310, 140 S.W. 528; Slote v. Reiss, 153 Ky. 30, 154 S.W. 405; Murphy v. Murphy, 182 Ky. 731, 207 S.W. 491; Lindenberger v. Cornell, 190 Ky. 844, 229 S.W. 54; Gatto v. Gatto, 198 Ky. 569, 250 S.W. 833; Giltner's Trustee v. Talbott, 253 Ky. 474, 69 S.W. 2d 981. Of particular pertinence and application are Cooper's Adm'r v. Clarke, 192 Ky. 404, 240 S.W. 361, and Sipes v. Boehmer, 291 Ky. 824, 165 S.W. 2d 807.

The result is that the seven nieces and nephews have only a life estate, subject to the restraints, and their respective descendants a succeeding life estate plus a defeasible fee in remainder. There cannot be a merger of a life estate and a defeasible fee in remainder. 31 C.J.S., Estates, Sec. 126; Abernathy v. McCoy, 91 Ind. App. 574, 154 N.E. 682. Compare Larmon v. Larmon, 173 Ky. 477, 191 S.W. 110. This conclusion is different from the construction of the will by the chancellor, as we have above outlined.

Thus there is presented the questions of the validity of the restraints on alienation, (a) as to time and (b) as to grantees, attached to (1) a life estate and to (2) a defeasible fee.

In short, the...