McQuerry v. Gilleland

• Decision Date: 16 January 1890
• Citation: 12 S.W. 1037,89 Ky. 434
• Parties: MCQUERRY v. GILLELAND et al.
• Court: Kentucky Court of Appeals

12 S.W. 1037

89 Ky. 434

MCQUERRY v. GILLELAND et al.

Court of Appeals of Kentucky.

January 16, 1890

Appeal from circuit court, Lincoln county.

"To be officially reported."

An action by Elizabeth Gilleland and others against William McQuerry to compel a conveyance of land. Judgment for plaintiffs. Defendant appeals.

Wm Lindsay and W. H. Pettus, for appellant.

O. H Waddle, J. T. May, and T. Z. Morrow, for appellees.

BENNETT J.

The record, as we think, establishes substantially the following state of case: In 1849 the appellant, William McQuerry, and his father, John McQuerry, bought two land-warrants each, of 160 acres each, which had been issued by the federal government to the soldiers of the Mexican war. These warrants were for land in the state of Iowa. The appellant, by an arrangement with his father, went to the state of Iowa, in company with his younger brother, Milton Green McQuerry, then about 17 years old, for the purpose of locating said warrants, and of obtaining patents, two of which were to be in his own name and two in the name of his father, John McQuerry. But if, from any cause, patents on the two warrants could not be obtained in the father's name, they were to be obtained in the appellant's name, for the benefit of the father. The appellant, on arriving at the land-office in the state of Iowa, found, owing to the absence of his father from the state, and not having his written power of attorney that he could not obtain the patents in his father's name, and, pursuant to the alternative agreement, caused them to be issued in his own name, but failed thereafter to convey the land to his father. His father, in 1852, died, leaving a last will, which was recorded in Pulaski county; and the appellant was named in the will, and qualified, as one of the executors, and entered upon, and continued to discharge, his duties as executors of the will. He was also one of the devisees of the will, and received the portion of the estate devised to him. The testator, among other things, willed to his wife, during her life, this Iowa land, remainder to his son, Milton Green McQuerry, and recited the fact that he bought the two warrants, and that the appellant had to have the patents issued in his own name, and requested him to convey the land to his wife for and during her life remainder to Milton Green McQuerry. Milton Green McQuerry died soon after the war, without having had issue; and the widow of the testator, John McQuerry, having died in 1884, the appellees brought this action in equity against the appellant, to compel him to convey to the appellees, Mrs. Gilleland, sister of the appellant, and the other appellees, children of his other sister, deceased, their respective portions of said land, they claiming as co-heirs with the appellant of Milton Green McQuerry. The lower court adjudged that appellant should make the conveyance. From that judgment he has appealed.

It is to be observed that appellant is one of the devisees under the will, and is one of the executors of the will. Also supposing that the testator was mistaken as to owning, or ever having owned, any interest in said land, that the appellant was bound to respect, and that it in fact belonged to the appellant, yet it is a fact that the testator devised a portion of his own estate to the appellant, and directed (the request is in this will a direction) the appellant to convey this land to his widow for life, remainder to Milton Green McQuerry. The testator, in making this direction, assumed to dispose of this land as his own, and, in connection with other estate, certainly his own, devised portions of the whole to all of his children; and, but for reckoning the whole as his, he doubtless would have made a different disposition of the estate that did in fact belong to him. So the question arises, supposing that said land belonged to the appellant, but the testator having assumed to dispose of it by will, and the appellant having been made a devisee under the will, and having accepted its provisions, has he not thereby elected to surrender all right to said land, and to make the conveyance according to the direction of the will? The principle is well settled, where a testator devises his own estate, or a part of it, to a person, and also devises that person's estate to another, and that person accepts the estate thus devised to him, such person will not be heard to assert his old right, but, by thus accepting the provisions of the will, he relinquishes his old right to the other person. He cannot enjoy...