McGraw v. Miner

• Decision Date: 10 January 1891
• Citation: 15 S.W. 6
• Parties: MCGRAW v. MINER.
• Court: Kentucky Court of Appeals

15 S.W. 6

MCGRAW v. MINER.

Court of Appeals of Kentucky.

January 10, 1891

Appeal from circuit court, Mason county.

Wall & Worthington, for appellant.

Cochran & Son and E. W. Hines, for appel lee.

PRYOR, J.

Under the will of Lucien S. Luttrel, his daughter Lucie Miner, claiming a life-estate in the realty devised to her, with the remainder to her children, obtained a judgment selling the land under the provisions of the Code, for purposes of reinvestment. It is claimed by the purchaser that the daughter had a fee-simple estate, and therefore the chancellor could not divest her of title in such a proceeding, and, if not invested with the fee, it is then urged that the will prohibits a sale either by the wife or the chancellor of her interest. The clause of the will under which the several questions are raised reads: "It is my desire that my said daughter shall have the benefit of the portion of my estate devised her, and that she shall not be divested of it during her life-time, and at her death to be equally divided between her children." The testator in a previous clause of the will declared his purpose to make his children equal, and proceeded to devise an equal part to each; but then follows the restrictions or limitations placed on the devise to the daughter, by which her children are devised the remainder interest, which we think is not inconsistent with his purpose to make the daughter equal in the devise of his estate with the two sons. The daughter, under the will, had a life-estate, with remainder to her children. As to the objection that the sale is in contravention of the will, it is apparent that the object of the testator was to secure the estate devised to his daughter for her benefit, and the purpose of thus securing the beneficial interest to the daughter during life was not to prevent a sale, when that interest was still secured to her, but to prevent any such divesting of title as would deprive her of the benefit of the devise. The daughter being protected in the devise to her, and holding the proceeds for investment, as she did the original estate, we see no reason why the purchaser should not be compelled to accept the title. Judgment affirmed.