Maher v. Maher
| Decision Date | 29 July 1957 |
| Docket Number | No. 683.,683. |
| Citation | 154 F. Supp. 804 |
| Parties | Leslie MAHER and Leslie Ann Maher, an infant under 14 years of age, by Lawrence Riedinger, Jr., her next friend, Plaintiffs, v. Frank MAHER, Jr., Eleanor Maher Hines, James Maher, Betty Maher Purdon, Thomas Maher, John Maher, James Maher, Michael Maher, and James Hines, Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
Charles E. Lester, Jr., Newport, Ky., for the plaintiffs.
Robert B. Halloran, Russell L. Howard, Newport, Ky., Hughes, Clark & Lee, Covington, Ky., Bernard Coughlin, Maysville, Ky., and M. J. Hennessey, Augusta, Ky., for the defendants.
On the 27th day of February, 1951, Dan Maher, a resident of Mason County, Kentucky, died testate. His will was admitted to probate by the county court. He was the owner of farm lands of approximately 586 acres which he devised in various estates to his nearest of kin, all of whom are parties to this action.
By the terms of the will Thomas Maher, a brother of the deceased, took a life estate in a one-half undivided interest in the farm land. Five nieces and nephews, the sons and daughters of a deceased brother, took a life estate in the remaining one-half undivided interest in the farm land.
It has been determined by a construction of a section of the will by this court (139 F.Supp. 294) that the fee in the one-half undivided interest of Thomas Maher shall descend to his children or to the children of any of the children who may be dead at the time of the death of Thomas Maher. In the event Thomas Maher dies without heirs, his one-half undivided interest in the land is to revert to the estate of the testator to be distributed under the statute of descent and distribution.
Thomas Maher is now a man 75 years of age and without descendants.
The will provided that upon the death of the five nieces and nephews, life tenants in the other one-half undivided interest in the land, the estate should vest in the heirs of such nieces and nephews and in the heirs of other collateral descendants of the testator living at the time of the death of the life tenants.
The will contained the following provision:
Frank Maher, Jr., by the terms of the will qualified as executor in the Mason County Court and entered upon the duties of the discharge of his trust. Also he qualified under the terms of the will in the same court as trustee, took the oath as required by law, and entered upon the duties of the discharge of that trust. So far as the record in the case goes, Frank Maher, Jr. is now acting in the capacity of trustee of the estate.
This is an action in which the plaintiff, Leslie Maher, as one of the nephews of Dan Maher and the owner of a life estate in a one-fifth of a one-half undivided interest in the land in question, and his daughter, Leslie Ann Maher, an infant under fourteen years of age, both of whom are residents of the State of Ohio, seek to have the entire body of 586 acres of land sold and for a division of the proceeds of the sale to the various owners as their interests may appear and as the monetary value of their respective ownerships in the land might be ascertained.
The action is brought by Leslie Maher, his infant daughter, Leslie Ann Maher, by next friend, and Edith June Maher, wife of Leslie Maher, pursuant to KRS 389.020(1) (b). The statute, insofar as pertinent, authorizes a judicial sale of a vested estate in real property jointly owned by two or more persons in an action brought by either of them, though the plaintiff or defendant be of unsound mind or an infant, "if the estate be in possession and the property cannot be divided without materially impairing its value or the value of the plaintiff's interest therein."
The defendants are Thomas Maher, the owner of a life estate in a one-half undivided interest in the land, the other four life estate owners in the other one-half undivided interest in the land with Leslie Maher, their spouses, certain infants who are remaindermen to a one-half undivided interest in the land, and Ed Maher, a half brother of the testator, and his wife, Allie Maher.
It is established by the record and is not contested that the land is indivisible and would have to be sold as a whole.
It is the judgment of the court that an order of sale cannot be entered under KRS 389.020(1) (b) on the record. The section relates to the sale of vested estates in joint possession or in present right of joint possession and no estate except a vested one can be sold by virtue of its provisions. The remaindermen who are the heirs of the life tenants and who were living at the time of or have been born since the death of the testator, Dan Maher, take a defeasible fee in a one-half interest in the land. Their inheritance is dependent upon their being alive at the time of the death of the life tenants. The estate which they will receive upon that contingency will depend upon the number of persons living at the time who are members of the same class. Some of the class now living may be dead; others of the class which may eventually inherit may not yet be born. It is not possible to divide the remainder until the death of the life tenants.
The remaindermen are not in possession within the meaning of the statute. This statute applies only to estates in possession by those holding jointly, and cannot be held to apply in cases where the possession is with the life estate. The statute cannot be construed as permitting the life tenant to surrender the possession and vesting it in the remaindermen by merely asking that his life estate be sold. KRS 389.020(1) (b) gives relief to joint tenants in possession where the land cannot be divided. It is plain that a vested interest in a remainder without possession does not authorize a sale of indivisible land under this section. Malone v. Conn, 95 Ky. 93, 23 S.W. 677.
A remainder interest may be a vested interest but our Kentucky courts have uniformly held that a remainder interest is not property in possession within the meaning of this section. Whitney v. Dorsey, 268 Ky. 773, 105 S.W.2d 1025; Lowery v. Madden, 308 Ky. 342, 214 S.W.2d 592.
It is not essential that all of the interests of the joint owners be the same where some of the parties asking for the sale are life estate owners and others are vested remaindermen, but it is essential that all of them be entitled to a joint possession. It must be a possession which extends throughout the entire estate. Where there is a life estate of the entire property in some and remainder in others, the property cannot be sold for there would be no joint holding between the life tenants and the remaindermen. The remaindermen would not be in possession. "Judicial Sales of Real Estate", Grider, pp. 93, 94.
While the owner of an estate in real property which is held jointly with others has a legal right to convert his estate into cash by sale, such a right is dependent upon the terms of the law involving such a situation. The life tenants here may sell their respective interests to purchasers who are willing to buy and hold the interest per autre vie. That does not imply that they have a right to sell the interests of contingent remaindermen or those who may become contingent remaindermen who are yet unborn. The rights which the life tenants have are by inheritance. Except for the generosity of the testator they would own nothing. Consequently, the law imposes on those who inherit or who take under a deed, the will of the testator or grantor in making the devise or grant.
The testator exercised absolute control over his property during his life and the law gives him the right to exercise that control and dispose of it according to a fixed purpose for a time after his death, conditioned only by the statutes of limitation, such as the rule against perpetuities.
The court should, by its orders, carry out the intention of the testator, insofar as it is ascertainable from the whole will, in an action seeking to dispose of the property by sale just as in an action seeking a construction of the will. The following quotation from the case of Miracle v. Miracle, 260 Ky. 624, 86 S.W.2d 536, 538, 102 A.L.R. 964, is pertinent to the issue here presented and well expresses the limitation placed upon the court:
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