Lindenberger v. Cornell

• Decision Date: 15 March 1921
• Parties: LINDENBERGER v. CORNELL ET AL.
• Court: Kentucky Court of Appeals

229 S.W. 54

190 Ky. 844

LINDENBERGER v. CORNELL ET AL.

Court of Appeals of Kentucky.

March 15, 1921

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by Annie C. Lindenberger against Evaline D. Cornell and others. From the judgment, plaintiff appeals. Reversed and remanded.

Burnett Batson & Cary, of Louisville, for appellant.

Nicholas T. White, of Louisville, for appellees.

HURT C.J.

The appellant was the widow of one James Y. Currey, who died on the 4th day of December, 1916, but since has married the appellee Harry B. Lindenberger. Her former husband, James Y Currey, died testate, leaving a last will and testament which provided as follows:

"Article First. I direct the payment of all my just debts and funeral expenses as soon after my death as may be practicable.

Article Second. I hereby give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, wheresoever situated, whereof I am seized or possessed or to which I may be in any manner entitled or in which I may be interested at the time of my death, unto my beloved wife, Annie Cornell Currey, during her life, this provision being made for the benefit and in the interest of any child or children who may hereafter be born, believing it to be in their best interests for me thus to trust and to rely wholly upon my said wife to care for them and to provide properly for their support and maintenance.

Article Third. I will and direct that so much of my residuary estate as shall remain upon the death of my said wife, Annie Cornell Currey, shall be divided into three equal parts; and, I hereby give, devise, and bequeath one of such parts to the heirs at law of my said wife, or to such person or persons as she may designate in case she elects to dispose of said one-third part by will; and I hereby give, devise and bequeath the remaining two of such equal parts unto my mother, Arthusa Ruth Currey, absolutely forever. But, if my said mother shall have died before the death of my said wife, then and in that event I give, devise and bequeath the said two equal parts unto my brothers and sisters then living, share and share alike."

The testator left surviving him his mother, Arthusa Ruth Currey, and the following brothers and sisters, viz.: Maggie Currey Robinson, Sallie Currey Hemphill, wife of J. C. Hemphill, Mamie C. Gaines, wife of Fisher Gaines, Carrie C. Anderson, wife of John L. Anderson, Theodore Currey, whose wife is Harriet F. Currey, and William Y. Currey, whose wife is Ella Moore Currey. At the time of the death of James Y. Currey, the appellant, his widow, had the following relatives: Evaline D. Cornell, her mother, and James H. Cornell and Theodore P. Cornell, brothers, and Lillie C. Fleming, a sister. The testator's only estate consists of a house and lot in the city of Louisville, which he purchased several years previous to his death, at a cost of $4,350.

The testator, at the time of his death, was indebted to various persons in sums which aggregated $1,200, and these debts his widow discharged with her own money. The dwelling house which testator owned at his death being in need of repairs, the widow expended $600 of her own money in making such repairs upon it as she deemed necessary. The testator's mother and his brothers and sisters, who were alive at the time of his death, joined in a deed of conveyance and attempted to convey to the widow in fee the two-thirds interest in the house and lot, which under the will, subject to the life estate of the widow, was devised to the mother of testator, absolutely, if she should be living at the death of the widow, and if the mother was not then living to the brothers and sisters of testator who were then living.

The appellant, who was the widow, brought this action against the appellees, who are her mother, brothers, and sisters, and who would be her heirs if she should die at this time, claiming that she took an estate in the house and lot which was greater than a life estate, in other words, she had a life estate with a power of disposition and had the power to sell and convey same, and that she was in need of the proceeds of the sale of same for her maintenance, and had been offered a fair price for it, which she accepted, but the purchaser refused to accept a conveyance from her or to consummate the contract, claiming that she could not convey a good title. She prayed for a construction of the will and a determination as to what estate she had in the property, as well as the other persons had who are named in the will, and, in the event it should not be decided that she had an estate coupled with the power which authorized her to sell and convey it, that she be adjudged a lien upon the property for the $1,200 she had paid in discharge of the testator's debts and the $600 which she had expended in repairs upon the property, and that these liens be enforced and the property sold and any interest which she had therein be set apart to her.

The court adjudged as follows:

(1) The testator owned no property other than the house and lot at his death, and that it was indivisible.

(2) The appellant was entitled to recover the sum of $1,200 against the estate of the testator, with interest since February 3, 1917, and also the $600 against the house and lot, both the life estate and the remainder interest.

(3) By reason of the deed executed to appellant by the mother, brothers, and sisters of testator, she became the owner of two-thirds of the property in fee, with power to sell and dispose of it upon such terms as she might choose and appropriate the proceeds.

(4) Under the will, appellant was the owner of a life estate in the other one-third of the property, with a power to dispose of it absolutely by will, and the appellees, her mother, brothers, and sisters, were the owners of a vested remainder in it, and that they, as such vested remaindermen, had full power and right to convey the remainder and vest the purchaser with an absolute title thereto, subject to the life estate of the appellant and her power to dispose of it by will.

(5) The appellant cannot convey a title in fee simple to the one-third interest last mentioned, and that such title can only be conveyed by a joint conveyance of herself and appellees.

(6) The appellant has a lien upon the said one-third part, devised to her for life, to secure the payment of one-third of the $1,200 and $600 above mentioned, and that such one-third interest be sold in satisfaction of same, and appellant was authorized to become a bidder at the sale.

(7) If the undivided one-third interest should sell for a sum in excess of $600, the appellant has only a life estate in the excess, and a right to the income from it, but no right to encroach upon the principal of it, which should be put in the hands of a trustee and invested as other trust funds, and held subject to the conditions of the will as to such one-third part.

From the judgment the widow has appealed.

(a) Considering the first, second, and sixth findings of the court, the testator having left no other property than the dwelling house and lot, his indebtedness was a lien upon it; and the appellant, having a life estate in the property and discharging the incumbrances with her own money to prevent its sale, is entitled to be substituted to the lien which the creditors had upon the entire property, and the right to an enforcement of her lien, and a sale of a sufficiency of the property to satisfy the debt with its interest. Todd's Ex'r v. First National Bank, 173 Ky. 60, 190 S.W. 468; Daviess v. Myers, 13 B. Mon. 511. The lien is not upon the third part of the property only, but to the whole of it, and, for reasons hereinafter shown, the judgment should have been for the entire amount of the indebtedness and for a sale of the entire property in satisfaction of it, instead of for a third part of the indebtedness and for a sale of only a third part of the property. Being a dwelling house and a small lot upon which it stands, it was not divisible, and for that reason a judgment could not be rendered to sell a sufficiency of it to pay the debt, but the widow was properly authorized to become a bidder at the sale. The parties in interest under the will would have the same interest in the excess of the proceeds of the sale as they would have in the property if it had not been sold.

(b) The defendants in the action made no objection to the assertion of the claim of $600 expended upon the property for repairs nor to its assertion as a lien thereon; but inasmuch as the parties who, under the will, may eventually be the devisees of the remainder interests and entitled to the property, were not parties to the action and may not now be in existence, the court was not authorized to adjudge a claim to be a lien upon the property and a sale of it in part satisfaction of such a claim, when it could not, in any event, be a debt against the remaindermen, nor a lien upon their interest in the property. The record does not indicate the nature of the repairs, but it does show that at the death of the testator, and when the life estate of the appellant came into existence, the testator and his family were then occupying the building, and that for such reason it was not untenantable, although it might be in need of ordinary repairs, and that the repairs made by appellant at the cost of $600 put it in good repair, and that it was now of the value of $3,200. There is no principle better settled in this jurisdiction than that it is the duty of a life tenant to maintain the property in repair so as to preserve it from destruction, and that it may be preserved for the remaindermen in substantially the condition in which it was received by the...