Rankin v. Rankin

• Decision Date: 21 December 1928
• Citation: 227 Ky. 169
• Parties: Rankin et al. v. Rankin.
• Court: United States State Supreme Court — District of Kentucky

227 Ky. 169

Rankin et al. v. Rankin.

Court of Appeals of Kentucky.

Decided December 21, 1928.

1. Wills. — Where an estate is devised to one for life, with remainder to another, with provision that property shall go to third person, if remaindermen die without issue, condition of death of remainderman

without issue is restricted to death before termination of life estate.

2. Wills. — Will, giving grandson remainder after death of life tenant, and providing for disposition of property to third persons in case of remainderman's death without issue, held to give remainderman fee-simple estate, where he survived life tenant since term "dying without issue" referred to death before termination of life estate, notwithstanding provision that property should be held in trust for remainderman.

3. Wills. — Effect must be given to intention of testator as expressed in entire instrument, and manifest intent prevails over conflicting rule of construction.

4. Wills. — Will, devising property for life with remainder over to be held in trust for remainderman by trustee nominated in will or by trustee appointed by court, held not to create valid trust, where trustee was given no power or control over property or authority to direct its use.

5. Trusts. — Separation of legal estate from beneficial enjoyment thereof is essential to existence of "trust," and trust is terminated where legal and equitable estates come together in the same person.

Appeal from Clark Circuit Court.

JAMES PARK and OWEN S. LEE for appellants.

J. SMITH HAYS for appellee.

OPINION OF THE COURT BY JUDGE McCANDLESS.

Affirming.

Claiming a devise of 110 acres of land in fee simple under the will of his grandfather, Allen Armstrong, the plaintiff, William F. Rankin, in this action seeks a construction of that will and to have his title quieted against the claims of the other heirs of his mother, Mrs. John Hart, deceased. The case turns on the construction of the second clause of Allen Armstrong's will and the codicil thereto, dated April 2, 1873, and June 23, 1876, respectively. By the first clause of the will testator's wife, Mrs. Susan Armstrong, was devised a life estate in the lands mentioned below, and the provisions cited supra are in these words:

"Second: I give and bequeath to my grandson, William F. Rankin, the said one hundred and fifty acres of land more or less, in remainder, after the death of my wife, Susan Armstrong, the said tract of land with its appurtenances, devised in the first clause of this my will to my said wife, to go to said William F. Rankin after the death of my wife, and the same to be held in trust by Allen A. Rankin for said William F. Rankin; or in the event that said Allen A. Rankin should die before my wife dies, or declines to act as Trustee under my will for said William F. Rankin, then the Clark Circuit Court is requested t oappoint a trustee for the purposes of holding the land herein devised in remainder to said William F. Rankin. In the event said William F. Rankin dies without leaving children, the land herein devised in remainder to him is to be divided as follows: One hundred acres of said tract of land to his mother, Martha Jane Hart, wife of John Hart of Fayette county, Kentucky; the remainder of said tract of land to be equally divided among the children of Allen A. Rankin."

The codicil:

"Allen Armstrong of Clark County, Kentucky, do make this codicil to my will made by me on the 2nd day of April 1873. I do so for the purpose of making the following alterations in the devise made by me in said will of the remainder in the one hundred and fifty acres of land devised to my wife, Susan Armstrong, for and during her life, and the remainder to William F. Rankin. It is my will, and I hereby devise to my grandchildren, Elbert Rankin and Allen Rankin, children of Allen A. Rankin, deceased, so much of said one hundred and fifty acres of land, in remainder, and after the death of my wife, Susan Armstrong, as will be embraced in the following described boundary:

"A line to surveyed commencing at the Two Mile Road, south of a spring, around to line east with the present fence to mine and Jesse G. Hart line and the line to bind on said fence. The said Elbert and Allen Rankin are to have jointly all the land that lies north of said line in the direction of the town of Winchester, Kentucky, said boundary herein devised to my said two grandchildren supposed to contain between forty and fifty acres of land. The said devisees are not to have possession of said boundary of land until after the death of my wife. Susan Armstrong."

The chancellor granted the relief sought in the petition and the heirs of Mrs. Hart appeal. Both appellant and appellee...