Malona v. Schwing

• Citation: 39 S.W. 523,101 Ky. 56
• Parties: MALONA et al. v. SCHWING et al.
• Decision Date: 12 March 1897
• Court: Court of Appeals of Kentucky

39 S.W. 523

101 Ky. 56

MALONA et al. v. SCHWING et al.

Court of Appeals of Kentucky.

March 12, 1897

Appeal from chancery court, Jefferson county.

"To be officially reported."

Action by Josephine Schwing and others against William Malona and others. From the judgment, defendants appeal. Reversed.

C. B Seymour, for appellants.

Wm McKee Duncan, Samuel Johnston, and E. E. McKay, for appellees.

GUFFY J.

This action was instituted by the appellees Schwing in the Louisville law and equity court against James Malona and numerous other defendants. It is alleged, in substance, in the petition, that one James Malona departed this life leaving a last will and testament, which was duly probated leaving a large estate in Louisville, which was afterwards divided pursuant to a judgment of said court rendered in suit No. 19,777, in which James Malona was plaintiff, and Josephine Schwing, late Malona, etc., were defendants; and that the following real property was set apart and conveyed to this plaintiff, viz.: The north part of the three-story house and lot on the east side of Seventh street, between Chestnut and Broadway; also the south part of the three-story house on the east side of Seventh street; also a lot on the south side of Broadway, a lot on same street. It also appears from said petition that the plaintiff, Schwing, James Malona, and Arlemesia Malona were the only heirs of the testator, and that she was married to one Leathers, and died without issue. It is also substantially alleged in the petition that the defendants are claiming some interest, contingent or otherwise, in the real estate aforesaid, under the will of James Malona, and they are called upon to assert their claim, or be forever barred. It is also claimed that the plaintiff Josephine is invested with the fee-simple title to said real estate. Plaintiff finally prayed for a construction of the said will, and for a sale of the real estate, and that plaintiff be adjudged entitled to the proceeds absolutely. The defendants William Malona and others demurred to the petition, which demurrer was overruled by the court. The defendant James Malona, who is a brother of plaintiff, answered, and conceded that plaintiff had a fee-simple title to the real estate that she acquired as heir of their deceased sister, Arlemesia, under the will aforesaid, but denied her fee-simple title to the other lots, and claimed that, in the event of the death of his sister without issue alive, the realty would descend to him in fee. He also, in substance, pleaded and relied upon the opinion of this court delivered in February, 1880, upon an appeal from the judgment of the Louisville law and equity court, rendered in suit No. 28,506, wherein he was plaintiff, and wherein the plaintiffs herein and his codefendants were defendants, and claimed that the subject-matter of the questions involved was the same, and pleaded same in bar. It appears from the record that by agreement between the brothers and sister the court below reserved its decision as to the controversy between them; hence that issue need not be further noticed.

Appellants answered, and claimed an interest in the real estate in controversy in the event of the death of the said brothers and sister without issue, stating facts tending to show that such would not likely be the case. Their claim is by virtue of the eleventh clause of the will of James Malona. The clause reads as follows: "Eleventhly. It is my will that the property devised to my daughters shall be for their separate use, independent of any husband they may have; and if any of my children shall die without a child living at the time of his or her death the estate and property devised to such child shall go to the survivor or survivors. And in case of the death of any child who shall be the heir of such child of mine under the age of twenty-one years, and unmarried, and without a child living at the time of the death, the property herein devised which would come to such child shall go to the survivor of my children or grandchildren, or to both; the grandchildren taking equally with each other. In case of the death of my children and any children they have, in the defect of children as before mentioned the property devised shall then go to the children of my brother Benjamin, except H. D. Malona and Mary Wright, and to the children of my sister Elizabeth Hedden and my sister Mary Green." The court below adjudged, in effect, that appellants took nothing under the will aforesaid, and adjudged a sale of the property thus...