Lindemeier v. Lindemeier

• Decision Date: 19 February 1891
• Parties: LINDEMEIER et al. v. LINDEMEIER et al.
• Court: Kentucky Court of Appeals

15 S.W. 524

91 Ky. 264

LINDEMEIER et al. v. LINDEMEIER et al.

Court of Appeals of Kentucky.

February 19, 1891

Appeal from Louisville chancery court.

M. A D. A., & J. G. Sachs, for appellants.

Jas Quarles, for appellees.

HOLT C.J.

The will of Clemens Uhlen provides: "(3) I give and bequeath to my step-son. Clemens Lindemeier, my double frame house and lot on the north side of Marshall street, between Preston and Jackson streets. * * * It is my will that my wife, A. M Uhlen, shall keep all the property hereby bequeathed for her only use and benefit during her life-time. It is further my will that the property bequeathed to F. Clausing and C. & H Lindemeier shall only be in trust for them, and they shall have no right to sell or otherwise dispose thereof, but to left to their heirs, and, should any of the three last named die without heirs, their widows shall have the benefit thereof as long as she remains a widow, and then the property shall be divided equally between the remaining heirs." The widow of the testator having died, and Clemens Lindemeier being in possession of the house and lot above described, he brought this action, making his wife and his five infant children defendants, for a construction of the will and a sale of the property for reinvestment. The defendants were properly brought before the court. A guardian ad litem was appointed to defend for those under age, and is proper time filed his report. Before the final submission of the cause, a guardian appeared and executed to each of the infants the bond required by statute in case of a sale of infants' real estate. The lower court held that Clemens Lindemeier had a life-estate in the property, but refused to order a sale of it, upon the ground that it was forbidden by the will. Clearly the chancellor was right in holding that Clemens Lindemeier was not merely a trustee of the property for his children, but that he had a life-estate in it. The Civil Code, § 491, authorizes a sale of real estate, where it is owned as this is, by a decree in an equitable action, if the titlepapers are filed, and facts be averred and proven showing that the sale will benefit the owners; but no such sale can be ordered if it be forbidden by the title-papers under which the property is held. Id. § 492. The petition contains the necessary averments, and it is shown by the evidence that the value of the property is decreasing rapidly; that it is in bad...