Roach v. Dance

• Decision Date: 24 May 1904
• Citation: 80 S.W. 1097
• Parties: ROACH v. DANCE et al.
• Court: Kentucky Court of Appeals

80 S.W. 1097

ROACH v. DANCE et al.

Court of Appeals of Kentucky.

May 24, 1904

Appeal from Circuit Court, Ballard County.

"Not to be officially reported."

Action by Pink Roach against William Dance and others. From a judgment for defendants, plaintiff appeals. Affirmed.

J. B Wickliffe, for appellant.

Reeves & Tharp, for appellees.

BURNAM C.J.

This appeal involves the construction of the will of A. W. Roach which reads as follows: "I give and devise to my beloved wife, Nancy Jane Roach, in lieu of her dower, the farm on which we now reside, *** containing one hundred and fifty acres, more or less, during her natural life. *** At the death of my said wife, the real estate aforesaid I give and bequeath to my seven children [naming them] in equal shares but if either of said children should die before my said wife, leaving no children living at the decease of my wife, then the share of such property so devised to such son or daughter, is hereby devised to the survivors of said children." The will of testator was duly probated in October, 1891. In 1897 the one undivided one-sixth interest of the appellant, Pink Roach, a son and devisee of A. W. Roach, in this tract of land, was sold by the sheriff of Ballard county to satisfy an execution in favor of W. A. Powell, which issued from the office of the Ballard circuit court. At this sale the appellee Wm. Dance and W. A. Powell, the plaintiff in the execution, became the purchasers of such undivided interest, and in August, 1898, the sheriff executed to them a deed therefor. The interest of W. A. Powell in this purchase was subsequently acquired by F. W. Tharp. After the death of the life tenant, the appellees Dance and Tharp instituted this proceeding, asking that the one-sixth interest devised to Pink Roach should be set apart to them, which he resisted on two grounds: First, because his interest in the land was contingent at the date of the sale under the execution, and was therefore not liable; second, because he occupied the land with his family, in connection with his mother, during her lifetime, and was so occupying it at the date of the levy and sale; and that his interest was of less value than $1,000, and that he was entitled to have it set apart to him as a homestead. A general demurrer was sustained to the answer of Roach, and judgment rendered in favor of the appellees Dance and Tharp for the land in controversy, and Roach has appealed.

The first question to be determined is whether the children of testator took a vested or contingent interest in remainder in the tract of 150 acres of land devised to their mother for life. Judge Kent (volume 4, § 202) says: "An estate is vested when there is an immediate right of present enjoyment or a present fixed right of future enjoyment." Mr. Minor, in his Institutes, vol. 2, p. 388, after quoting Fearne's Definition of Vested Remainder, 212, says: "It is not the uncertainty of ever taking effect in possession that makes a remainder...