Rawlings v. McRoberts

• Decision Date: 08 March 1894
• Citation: 25 S.W. 601,95 Ky. 346
• Parties: RAWLINGS et al. v. McROBERTS et al.
• Court: Kentucky Court of Appeals

25 S.W. 601

95 Ky. 346

RAWLINGS et al. v. McROBERTS et al.

Court of Appeals of Kentucky.

March 8, 1894

Appeal from circuit court, Fleming county.

"To be officially reported."

Action by Sanford Rawlings and others against Thomas McRoberts and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

W. G Dearing, John P. McCartney, J. H. Power, Wm. H. Holt, and Edward W. Hines, for appellants.

W. J Hendrick and W. G. Bullitt, for appellees.

HAZELRIGG J.

The sole question to be determined on this appeal is whether the following instrument is a deed or a will: "This deed of conveyance, made and entered into this 6th day of April 1891, by and between Austin Rawlings, of Fleming county. Kentucky, of the 1st part, and Thomas R. McRoberts, William McRoberts, John McRoberts, James McRoberts, and George McRoberts, of Fleming county, Kentucky, of the second part witnesseth: That whereas, Austin Rawlings, a bachelor now advanced in years, has numerous kinspeople; and whereas, in view of the uncertainty of life, said Rawlings desires to make a distribution of his estate,-to take effect, however and to go into effect, on and after death: Now, in consideration of one dollar in hand paid, the receipt whereof is hereby acknowledged, the said Austin Rawlings has this day aliened, sold, and conveyed unto the said George McRoberts, a greatnephew, all my right, title, and interest in and to all that tract or parcel of land bought by said Rawlings of James Rice, and which land is situated in Fleming county, Kentucky, on the waters of Locust creek, and the same is bounded, *** supposed to contain about one hundred and fifty acres, to him, his heirs and assigns, forever, with covenants of general warranty, to have possession at my death. This is understood to pay George McRoberts for the kindness, care, and nursing rendered me, and which may be necessary hereafter while I may live. The said Austin Rawlings has also this day aliened, sold, and conveyed jointly to Thomas McRoberts, James McRoberts, William McRoberts, and John McRoberts all his right, title, and interest in and to all the residue of his said land, of which he is now seized, consisting of about _____ acres, the same being situated in Fleming county, Kentucky, and is described as follows, to wit: [giving metes and bounds of several tracts.] All of the foregoing tracts and parcels of land the said Austin Rawlings, for and in consideration of love and affection, and as recited heretofore, he hereby aliens, sells, and conveys unto the said parties of the second part, namely, Thomas McRoberts, John McRoberts, James McRoberts, and Williams McRoberts, their heirs and assigns, forever, with covenants of general warranty. This conveyance to put to record, but not to take effect so as to give possession until after my death, at which time they are to divide the same as they see fit and proper. It being the intention of said party of the first part to make each and all of the parties of the second part equal, as near as possible, who are my nephews, (sons of my deceased sister, whom I have raised,) said party of the first part further conveys and stipulates that, at his death, whatever money, notes, or personal property remains is to be divided equally between said last-named four nephews, each accounting for sums advanced, not taking into consideration rents, which are not to be taken against them, after paying at my death fifty dollars to Elizabeth McRoberts, wife of George McRoberts, for kindness and attention to me while living. To have and to hold unto the said George McRoberts, Thomas R. McRoberts, James McRoberts, John McRoberts, their heirs and assigns, forever. In testimony whereof the party of the first part has hereunto subscribed his name, day and...