Harkness v. Lisle

• Decision Date: 16 March 1909
• Citation: 117 S.W. 264,132 Ky. 767
• Parties: HARKNESS v. LISLE et al. LISLE et al. v. SAME (two cases).
• Court: Kentucky Court of Appeals

117 S.W. 264

132 Ky. 767

HARKNESS v. LISLE et al.

LISLE et al. v. SAME (two cases).

Court of Appeals of Kentucky.

March 16, 1909

Appeals from Circuit Court, Scott County.

"To be officially reported."

Action by James L. Lisle and another against Rufus Lisle, Jr., and others. From the judgment, L. V. Harkness appeals against James L. Lisle and others; James L. Lisle and others appeal against Rufus Lisle, Jr., and others; and Rufus Lisle, Jr. and others appeal against James L. Lisle and others. Affirmed on first and third appeals; reversed on second.

Right to alienate is an inherent quality of vested fee-simple estates.

Samuel M. Wilson, for L. V. Harkness.

C L Williamson, for J. L. Lisle and others.

Bradley & Bradley, for Rufus Lisle, Jr., and others.

CLAY C.

These appeals involve the construction of the will of Rufus Lisle a prominent farmer and breeder of thoroughbred stock, who died a resident of Fayette county, Ky. in the year 1891, and the validity of the proceedings of the Scott circuit court decreeing a sale of the tract of land devised by Rufus Lisle to his son, James L. Lisle. The appeals will therefore be considered together.

This action was instituted by James L. Lisle and his wife, Pattie C. Lisle, against their only living children, Rufus Lisle, Jr., and Lillian Lisle, infants over 14 years of age, and their statutory guardian, Victor Bradley, and John II. Payne and E. P. Halley, Sr., trustees under the last will and testament of Rufus Lisle, Sr. The petition charges that by the fifth clause of the will of Rufus Lisle, Sr., the testator devised to James L. Lisle a fee-simple title to the 250 acres of land known as the "Duke place," located in Scott county, Ky. and that the fifteenth clause of said will was an unreasonable restraint upon the fee so devised, and was therefore null and void. It is further charged: That, if the estate devised to James L. Lisle was not a fee simple, it was a joint estate in fee with his children and a vested estate in possession, and could not be divided without materially impairing its value and the value of plaintiff's interest therein; that it would be to the interest of the joint owners therein, including the infant defendants, to sell the property and reinvest the proceeds in other land which would yield a better income. It was further charged: That the trustees named in the will attempted to comply with its provisions by deeding the 250 acres of land in Scott county to James L. Lisle and his children. That the granting clause of said deed was as follows, "The party of the first part does hereby sell and convey unto the party of the second part, their heirs and assigns, the following described real property," etc.; and the habendum of said deed was as follows: "To have and to hold said property unto the party of the second part, their heirs and assigns forever." The petition then alleges that the deed so made did not conform to the provisions of the will, and prays for a construction of said will, asking that, if it be adjudged that plaintiff James L. Lisle was the exclusive owner of the fee in said property, the deed be reformed so as to invest him with that character of title; also, that paragraph 15 of said will be adjudged an unreasonable limitation upon the estate devised, and that it be held for naught and void; and that if the property be held to be a joint fee in James L. Lisle and his children, or that he be the owner of a life estate with remainder to his children, the property be sold and the proceeds reinvested under the direction of the court.

Process was properly served upon John H. Payne and E. P. Halley, Sr., trustees, and upon the infant defendants, Rufus Lisle, Jr., and Lillian Lisle, and upon their statutory guardian, Victor Bradley. All the parties therefore were before the court. A demurrer was filed by the infant defendants to that portion of the petition charging that plaintiff was entitled either to the absolute fee or to a joint fee with his children. It was contended by their guardian that the estate devised to James L. Lisle was simply a life estate. This demurrer was sustained to that paragraph containing the plea that the estate devised was an absolute fee simple in James L. Lisle. It was overruled as to that paragraph pleading a joint estate in fee simple in him and his children, and judgment entered in accordance with the decision on the demurrer. James L. Lisle appeals from that portion of the judgment sustaining defendants' demurrer to the paragraph pleading an absolute fee-simple title in James L. Lisle. The infant defendants and their guardian appeal from that portion of the judgment adjudging a joint fee-simple estate in James L. Lisle and his children. Thereafter proof was taken upon the question of indivisibility and the advantages to be derived from a sale and reinvestment of the proceeds. The case was then submitted, and it was adjudged by the court that the property could not be divided without materially impairing its value as a whole, or the several parts thereof, that the fifteenth clause of the will of Rufus Lisle, Sr., was illegal and void, and that the property be sold for the purpose of reinvestment. It was further ordered that the proceeds of the sale be held subject to the further orders of the court. It appears that, prior to the institution of the proceedings, appellant L. V. Harkness agreed in writing with James L. Lisle to purchase the land at the price of $150 per acre. The testimony shows that this was in fact a high price, and that the sale at such a price was very advantageous to all parties concerned. Upon the sale by the master commissioner, L. V. Harkness complied with his agreement and purchased the property at a specified price. In due time he filed exceptions to the sale. Certain of these exceptions it will be unnecessary to notice. The principal exceptions relied upon are: (a) That the court erred in holding that the estate devised was a joint estate in fee simple in James L. Lisle and his children; it being contended that plaintiff James L. Lisle had either a fee-simple estate or an estate for life, with remainder to his children. (b) That the court erred in holding that the restraint upon the alienation of the property, imposed by the fifteenth clause of the will, was illegal and void. (c) That the deed from John H. Payne and E. P. Halley, Sr., trustees for James L. Lisle and his children, does not conform to the will of Rufus Lisle, Sr. All of the purchaser's exceptions were overruled, and he appeals.

We shall now proceed to a consideration of the questions involved on this appeal. The will in question bears date of October 7, 1890. It was probated November 23, 1891. In the first clause the testator directs the payment of his debts. In the second clause the testator devises and bequeaths to his wife, Mary M. Lisle, for and during her natural life, a certain farm, also the income of certain shares of stock. He then provides that, at the death of his wife, the shares of stock should be divided equally among his children, James L Lisle, Hampton Halley Lisle, Virginia H. Lisle, Nancy Lisle, and Miriam Lisle, but that at the death of his wife, if any of his children should be dead leaving issue, said issue should take, in such shares of stock, the same interest that the parent would have taken, if living, and, if any child should die without issue living, then the share of such child should be divided equally among his living children and the issue of any child that might be dead. In the third clause certain stock and agricultural implements and household furniture are devised to his wife. Clause 4 directs that the testator's blooded horses be sold by his executors. Clause 5, which relates particularly to the property involved in this action, is as follows: "I give, devise and bequeath to my son James L. Lisle and his children two hundred and fifty (250) acres of the tract of land I own in Scott county, Kentucky, known as the Duke place, said two hundred and fifty (250) acres is to be laid off so as to include all the houses, buildings and improvements on said land, upon the condition that my said son shall pay to my daughter Virginia H. Lisle one thousand dollars ($1,000.00) at once, and the further sum of eight hundred dollars ($800.00) when she is twenty-five (25) years of age, and upon the further condition that he shall pay my other children, Hampton Halley, Nancy and Miriam, each the sum of eight hundred dollars ($800.00) as they respectively become twenty-five (25) years of age. I require my said son to make said eight hundred dollars ($800.00) payments, because of advancements that I have heretofore made to him. I also devise and bequeath to my said son James fifty (50) shares of stock in the Fayette National Bank, Lexington, Kentucky, to be delivered to him as soon as possible after my death. He shall have the right to do as he pleases with said stock." By clause 6 the land devised to the testator's wife for life, together with certain bank stock, is devised and bequeathed "to my son Hampton Halley Lisle, and his children." By clause 7 the remainder of the Duke place (the other part of which was conveyed to James L. Lisle) was devised "to my daughter, Virginia H. Lisle and her children," and it is provided: "*** The said land shall be owned and held by my said daughter as her sole and separate estate, free from the debts and control of any husband she may have." Certain bank stock is also bequeathed to his said daughter. By clause 8 the testator devised and bequeathed "to my daughter Nancy Lisle and her children" one-half of a tract of 350 acres, with the provision that "said land shall be owned and held by my said daughter as her sole and separate estate, free from the debts or control...