Simmons' Adm'r v. Simmons

• Decision Date: 18 October 1912
• Citation: 150 S.W. 59,150 Ky. 85
• Parties: SIMMONS' ADM'R et al. v. SIMMONS.
• Court: Kentucky Court of Appeals

150 S.W. 59

150 Ky. 85

SIMMONS' ADM'R et al. v. SIMMONS.

Court of Appeals of Kentucky.

October 18, 1912

Appeal from Circuit Court, McCracken County.

Action by S. R. Simmons against U. A. Simmons' administrator and others. From a judgment for plaintiff on demurrer to the answer, defendant named and another appeal. Reversed, with instructions to overrule demurrer, and for further proceedings.

Berry &amp Grassham and A. W. Barkley, all of Paducah, for appellants.

Hendrick & Crice, of Paducah, for appellee.

MILLER J.

The appellee, S. R. Simmons, owned a life estate in a farm of 110 acres in McCracken county, and his wife, U. A. Simmons, now deceased, owned the remainder therein. Irreconcilable differences having arisen between them, they agreed, on March 10, 1908, to live separately and apart thereafter. As a part of the agreement of separation, S. R. Simmons sold and conveyed to his wife his life interest in the farm for $1,000 in cash, which she paid him. This deed was dated March 10 1908, and recites that S. R. Simmons sold to his wife "all the right, title and interest which the party of the first part may now or hereafter have" in and to the land therein conveyed. Said deed contains this further provision: "The purpose of this conveyance is to vest the title to said land absolutely in fee simple in the said U. A. Simmons, free from all right, title, interest and claim of the said S. R. Simmons, who hereby, and for the consideration herein expressed, waives and relinquishes all title and interest, including any prospective dower interest which he may hereafter have in and to said land, unto the said U. A. Simmons, giving to her the full right and power to make such distribution of said land at any time as she may see fit, either by deed or will, without the necessity of the said S. R. Simmons joining therein; and the said S. R Simmons relinquishes to any purchaser or devisee of the said U. A. Simmons all right that he might otherwise have in the said tract of land. To have and to hold unto the said U. A. Simmons, her heirs and assigns forever, together with all warranties thereunto belonging, and with general warranty of title, unto the said U. A. Simmons."

On the same day S. R. Simmons and U. A. Simmons, his wife, conveyed the land to Eugene Foster, in trust for the use and benefit of U. A. Simmons. This last-mentioned deed recites that U. A. Simmons, the wife, owned a life estate in the farm above referred to; that S. R. Simmons then owned the "reversion" therein; that said U. A. Simmons had that day purchased S. R. Simmons' "reversionary" interest for $1,000; and that said S. R. Simmons and U. A. Simmons, "desiring to place the title to said property in such condition that it can be disposed of by will or deed by the said U. A. Simmons, without her husband, S. R. Simmons, joining in the conveyance thereof," the deed of trust was made to Eugene Foster, "for the purpose of accomplishing the object and purposes hereinabove set forth."

This deed contains this further covenant on the part of the grantors, R. S. Simmons and U. A. Simmons, immediately following the description of the land, to wit: "And by these presents doth confirm, convey and deliver unto the said Eugene Foster, trustee, in trust for the use and benefit of U. A. Simmons, and for no other purpose, and upon the express condition that the said U. A. Simmons shall have complete and sole control, management and use of the property herein conveyed; and upon the further condition that the said U. A. Simmons, by and through the said Eugene Foster, trustee, shall have the power to sell, mortgage and devise, by will or deed, the property herein conveyed; and the said U. A. Simmons shall have the right to dispose of the property herein conveyed by will without the trustee joining in or approving the same; and upon the further express condition that upon the written request of the said U. A. Simmons, said Eugene Foster, trustee in trust for the use and benefit of said U. A. Simmons, shall have power to sell and convey, in fee simple, the property herein conveyed, or any part thereof, and a like power to mortgage the same, or any part thereof, without the said S. R. Simmons or U. A. Simmons joining in the deed. But should the said Eugene Foster, trustee, as aforesaid, sell or mortgage said property, the written consent of the said U. A. Simmons shall be embodied in such conveyance. And the said S. R. Simmons and U. A. Simmons hereby convey, grant and deliver unto the said Eugene Foster, trustee in trust for the use and benefit of the said U. A. Simmons, and his successors in office, any and all interest that they or either of them, whether the same be for life or in remainder, have in and to the above-described property, to have and to hold the same unto the said trustee and his successors in office, with covenant of general warranty."

On the same day Mrs. U. A. Simmons executed her will, to which her husband formally consented in writing. The will and the consent read as follows:

"I, U. A. Simmons, being of sound mind and disposing memory, do make and publish this, my last will and testament, with the full consent and approval of my husband, S. R. Simmons, which is evidenced by the fact that he has signed this will with me in acknowledgment thereof. It is my will that at my death, all the property, of every kind and description which I may own, both real and personal, shall go to and become immediately the property, in fee simple, of Ida Foster, now the wife of Eugene Foster; and, if the said Ida Foster should die before my death, then all of my property shall go to the children of the said Ida Foster then living, or to the children of such as may be dead at the time of my death. And I request the McCracken county court to appoint a personal representative for me to execute the terms of this will, if it be necessary. I desire that all my just debts owing at the time of my death be paid out of such property as I may leave. Witness my hand this 10th day of March, 1908. U. A. Simmons.

"Witness: I, S. R. Simmons, do hereby acknowledge my full approval of the foregoing will made by my wife, U. A. Simmons, and consent to the execution thereof. S. R. Simmons."

The farm was sold during Mrs. Simmons' lifetime, and she died in March, 1911, leaving, after the payment of her debts and funeral expenses, $3,336.85 in cash and notes, which represented the unexpended portion of the proceeds of the sale of the farm. Mrs. Simmons will was duly probated in March, 1911; and in that month S. R. Simmons renounced the provisions of her will, and claimed and asserted his marital rights under the Kentucky statutes by a written instrument duly signed and...