McNeer v. Patrick

Citation93 Neb. 746,142 N.W. 283
Decision Date17 May 1913
Docket NumberNo. 17,187.,17,187.
PartiesMCNEER ET AL. v. PATRICK ET AL.
CourtSupreme Court of Nebraska

93 Neb. 746
142 N.W. 283

MCNEER ET AL.
v.
PATRICK ET AL.

No. 17,187.

Supreme Court of Nebraska.

May 17, 1913.


[142 N.W. 283]


Syllabus by the Court.

P., a resident of the state of Kentucky, conveyed land in that state to I., as trustee for L., the recently married daughter of P. The conveyance to I. recited that it was in trust for the sole and exclusive use and benefit of L. and her heirs forever. Held, that the placing of the title in I. for the benefit of L. was for the sole purpose of protecting her against her husband and his creditors, and did not vest any estate in L.'s children; the words, “her heirs,” being technical words of inheritance merely and not words of purchase.

And, the lands in controversy, situated in this state, having been purchased with the proceeds derived from the sale of the Kentucky land, in accordance with the terms of the deed from P. to I. as trustee for L., the rights of L., under her deed to the Nebraska land must be determined by the laws of Kentucky, and the decisions of the Supreme Court of that state construing the same, at the time the deed from P. was executed.

And L. having subsequently become discovert by the divorce of herself and husband, the reason for the trust no longer existed, and the trust estate terminated; and, no other trustee having been appointed for her, thenceforward she was vested with the fee-simple title to the lands so conveyed with full power to sell and convey the same.


Appeal from District Court, Pawnee County; Raper, Judge.

Suit by Lawrence E. McNeer and others against Robert Patrick and others. From a decree of dismissal, plaintiffs appeal. Affirmed.

[142 N.W. 284]

J. C. Dort, of Pawnee City, Tibbets, Morey & Fuller, of Hastings, and George J. Humbert, of Denver, Colo., for appellants.

Story & Story, of Pawnee City, and H. H. Wilson, of Lincoln, for appellees.


FAWCETT, J.

This suit was instituted in the district court for Pawnee county by the sons and only heirs at law of Lavinia W. McNeer, deceased, to establish their title to and to recover the possession of the north half of the southeast quarter and the south half of the northeast quarter of section 34, township 2, range 11, in said county. From a decree dismissing their action and cross-action, they prosecute this appeal.

The controlling question in the case is the construction to be given to a deed executed by Watts Parker, the father of Lavinia (Mrs. McNeer) August 30, 1872, to lands in the state of Kentucky. Lavinia had become the wife of A. D. McNeer seven months prior to the execution of the deed by her father. The deed was as follows:

“This indenture, made this 30th day of August, 1872, between Watts Parker of Jefferson county, Kentucky, of the first part; Reuben E. Parker of county and state aforesaid, of the second part, and John Q. Irwin of county of Ballard and state aforesaid of the third part, trustee, for Lavinia W. McNeair (wife of A. D. McNeair) of Jefferson county, Kentucky, witnesseth:

That the said Watts Parker for and in consideration of the sum of eight thousand five hundred dollars in hand paid to him as follows, viz.: Five thousand dollars by the said Reuben E. Parker and three thousand five hundred dollars by the said Lavinia W. McNeair the receipt of all of which is hereby acknowledged by the said Watts Parker hath and doeth hereby grant, bargain, sell and convey unto the said second and third parties (certain lands therein described).

To have and to hold the said three tracts or parcels of land to said Reuben E. Parker and John Q. Irwin in the following proportions and conditions, namely, to the said Reuben E. Parker seven-twelfths thereof for himself, his heirs and assigns forever, and the remaining five-twelfths thereof is conveyed to said John Q. Irwin in trust for the sole and exclusive use and benefit of the aforesaid Lavinia W. McNeair and her heirs forever.

It is expressly understood that the said Lavinia shall use and occupy said five-twelfths of said land hereby intended to be conveyed to her and said Reuben E. Parker as tenants in common in the proportions aforesaid; that is, seven-twelfths to said Reuben E. and five-twelfths to Lavinia W. and should she and her said trustee, John Q. Irwin, at any time think it would be to the interest and benefit of the said Lavinia W. to sell her interests in the above described three tracts of land they, the said John Q. and Lavinia, shall have the same to the purchaser or...

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