Shearer and Ramsey v. Backer

• Decision Date: 20 February 1925
• Citation: 207 Ky. 455
• Parties: Shearer and Ramsey v. Backer, et al.
• Court: Kentucky Court of Appeals

Page 455

207 Ky. 455

Shearer and Ramsey v. Backer, et al.

Court of Appeals of Kentucky.

Decided February 20, 1925.

Appeal from Wayne Circuit Court.

HARRISON & HARRISON and BERTRAM & BERTRAM for appellants.

DUNCAN & BELL and B.J. BETHURUM for appellees.

OPINION OF THE COURT BY JUDGE CLARKE — Affirming.

W.J. Kindrick died intestate in 1889, possessed of a large estate. By the fifth clause of his will he devised to his son, James E. Kindrick, 900 acres of land for life, with remainder to his children, subject to the provision that "Said lands are not to be alienated during the life estate of my said son nor until his youngest child attains majority." Other described tracts of land were devised to his other children and their descendants in practically the same way. Following these bequests, clause 11 of the will provides that:

"Item 11th. In case of any of the devisees for life under this will getting in debt, incurring liabilities, and any creditors shall undertake to cause the collection of his claim against him or her by legal process of any kind and selling the interest of such life tenant, in such event the interest and estate of such life tenant shall instantly cease and the same shall pass to the next devisee or devisees in succession, subject, however, to the power of the trustees of the estate making allowances to such life tenant out of the proceeds of the estate to prevent such person from coming to want, and the guardian of the children who are beneficiaries under this will shall have the same power."

In 1897 a creditor of James E. Kindrick obtained a judgment against him for $200.00, execution issued thereon was levied upon his interest in 59 1/2 acres of the 900-acre tract, and same was sold thereunder to I.C. Ramsey, who took possession and held same until 1910. In 1910, the children of James E. Kindrick sued to forfeit his life estate in the 900 acres, and to recover the smaller tract from Ramsey and his lessee, the Wayne County Fair Association, under item 11, supra, of their grandfather's will. A settlement having been effected with Ramsey and his lessee, whereby they became tenants of the plaintiffs, and the cause having been submitted, the following judgment was rendered:

"This day came the plaintiffs by their attorneys and on their motion it is ordered and adjudged by the court that this cause as to the defendant, I. C. Ramsey, and the Wayne County Fair Association be and the same is now dismissed settled.

"And the defendants, J.E. Kindrick and Ethel S. Kindrick, having been duly summoned and failing to answer and this cause as to said defendants having on motion of plaintiffs by their attorneys been submitted to the court upon the pleadings and exhibits on file and the court being sufficiently advised, is of the opinion that the plaintiffs are entitled to the relief sought in their petition against said defendants. It is therefore adjudged and ordered by the court that the plaintiffs, Evelyn K. Backer, May K. Geary, Leila B. Kindrick, Perkin I. Kindrick and Allen R. Kindrick, are the joint and equal owners of the following described tract of land situated and being in Wayne county, Kentucky, and near the town of Monticello, and bounded as follows, to-wit: (here is copied into the judgment the same boundary as the first boundary in the petition), and are now entitled to the possession, control and management of the whole of said tract and boundary of land and the use of same, subject, however, to the right upon the part of the defendants, James E. Kindrick and Ethel S. Kindrick, to have a comfortable and reasonable support out of the proceeds of said land for and during their natural life."

The plaintiffs in that action, the two sons and three daughters of James E. Kindrick, took possession under the judgment, from which there has been no appeal, and have held the land, claiming same in fee, ever since.

In 1912, one of the sons died leaving a will by which he devised his interest in the land to his brother and sisters. In 1919, the other son sold and conveyed his interest therein to his three sisters. In 1920, the three sisters divided the land into lots and farms and sold same at a public sale. At that sale the plaintiffs and appellants in this action purchased several of the lots and farms at prices aggregating $29,651.78. Of this sum, they paid one-third in cash, and for the remainder executed their two equal notes due in one and two years, to secure the payment of which a lien was retained in the general warranty deed executed to them for the land by appellees.

Thereafter, in September, 1923, appellants instituted this action against appellees under the Declaratory Judgment Act (chapter 83, 1922 Acts), to enjoin the collection or transfer by appellees of the purchase money lien notes, for a declaration as to the disputed rights of the appellees to convey title to the land, and more especially to determine whether or not the title conveyed to them was subject to defeasance, under the will of W.J. Kindrick, in the event another child should be born to James E. Kindrick.

A demurrer to the petition was overruled, as was also a demurrer to the answer, whereupon the...