McFarland v. Hatchett

• Decision Date: 01 June 1904
• Citation: 80 S.W. 1185,118 Ky. 423
• Parties: McFARLAND et al. v. HATCHETT et al.
• Court: Kentucky Court of Appeals

80 S.W. 1185

118 Ky. 423

McFARLAND et al. v. HATCHETT et al.

Court of Appeals of Kentucky.

June 1, 1904

Appeal from Circuit Court, Henderson County.

"To be officially reported."

Action by Julia McFarland and husband against Roland Hatchett and another. From an adverse judgment, plaintiffs appeal. Reversed.

W. P McClain, for appellants.

Lockett & Lockett, for appellees.

NUNN J.

The appellants sued Roland Hatchett, alleging that Sarah Hatchett, who was the mother of appellant Julia McFarland and appellee Madison Hatchett, owned a house and lot in Henderson, Ky. for life, and that her children owned the fee in remainder; that Sarah Hatchett died some two years before the institution of this action, and that appellee Roland Hatchett had been in possession of this property, and owed her and her brother rent from the date of her mother's death to the institution of this action; that the property was not susceptible of division; and prayed judgment for rent against Roland Hatchett, and for a sale of the property for a division of the proceeds. Appellee Roland Hatchett demurred to the petition. His demurrer was sustained. Appellant declined to amend, and the petition was dismissed, with costs. The circuit court decided that Sarah Hatchett had a fee simple in the property, and that appellee her husband Roland Hatchett, had an estate by the curtesy in it for life. The deed to Sarah Hatchett was made prior to the passage of the married woman's act in 1894, and their marriage occurred long prior to the passage of this act, and if, under the deed, Sarah Hatchett took a fee-simple title, then the court was right in adjudging Roland Hatchett an estate by the curtesy. See Rose v. Rose, 104 Ky. 48, 46 S.W. 524 41 L. R. A. 353, 84 Am. St. Rep. 430, and Mitchell v Violett, 104 Ky. 77, 47 S.W. 195. The question to be determined is whether, under the deed to Sarah Hatchett for this land, she took a fee-simple title or only a life estate. If she took the fee, the judgment must be affirmed; if only a life estate, a reversal must follow. The deed to Sarah Hatchett for this lot was filed with and made a part of appellants' petition, and such parts of it as are necessary to elucidate the question involved are as follows: "This indenture made and entered into this 20th day of October, 1883, by and between W. P. Robinson and Jennie Robinson, his wife, of the first part, and Sarah Hatchett (colored), wife of Roland Hatchett (colored), of the second part, and all of Henderson county, Ky. witnesseth: That for and in consideration of the sum of sixty dollars in hand paid the receipt of which is hereby acknowledged, and the note of the party of the second part executed and delivered to the party of the first part for the sum of sixty-five dollars due six months after date and bearing six per cent interest, the party of the first part sells and hereby conveys to said Sarah Hatchett and her children a certain lot of ground situated in the city of Henderson [here describing the property]. To have and to hold to her, the said Sarah Hatchett and her children, with covenant of general warranty." The word "children" is a word of purchase, and not of limitation, and therefore, where property is devised or conveyed to a woman and her children, the children take as joint tenants with the mother, where there is nothing to show a contrary intention. Turner v. Patterson, 5 Dana, 295; Cessna v. Cessna's Adm'r, 4 Bush, 516; Powell v. Powell, 5 Bush, 620, 96 Am. Dec. 372; and Bell v. Kinneer, 101 Ky. 271, 40 S.W. 686, 72 Am. St. Rep. 410. But where there are other words in the will or deed showing that the word "children" was used in the sense of "heirs"--as where they are followed by the word "forever," and in other parts of the instrument the words "children" and "heirs" are used interchangeably, the term "children" will be read as meaning "heirs," and construed as a word of limitation, and not of purchase. This construction is adopted only to effectuate the intention of the maker when there is enough on the face of the instrument to show that he used the word "children" in the sense of "heirs." Moran v. Dillehay, 8 Bush, 434; Hood v. Dawson, 98 Ky. 285, 33 S.W. 75; Lachland's Heirs v. Downing's Ex'rs, 11 B. Mon. 32; and Williams v. Duncan, 92 Ky. 125, 17 S.W. 330. On the other hand, the word "heirs" will be read as synonymous with "children," and construed as a word of purchase, when necessary to effectuate the intention of the grantor in the deed. Tucker v. Tucker, 78 Ky. 503; Harper v. Wilson, 2 A. K. Marsh. 465. An exception to the above rule has been made in the case of a deed or will from the husband to his wife and children. These cases are held to constitute a peculiar class, and in such cases it is held that the wife takes the property for life, with remainder to the children. Fletcher v. Tyler, 92 Ky. 145, 17 S.W. 282, 36 Am. St. Rep. 584; Smith v. Upton, 13 S.W. 721, 12 Ky. Law Rep. 28; and Davis v. Hardin, 80 Ky. 672. Where the woman has no children when the deed or will is made, and it...