Spicer v. Spicer

• Decision Date: 26 October 1917
• Citation: 197 S.W. 959,177 Ky. 400
• Parties: SPICER ET AL. v. SPICER ET UX.
• Court: Kentucky Court of Appeals

197 S.W. 959

177 Ky. 400

SPICER ET AL. v. SPICER ET UX.

Court of Appeals of Kentucky.

October 26, 1917

Appeal from Circuit Court, Shelby County.

Action by Milton Spicer and wife against Robert Spicer and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded, with directions.

W. T Beckham, of Shelbyville, for appellants.

E. B Beard, of Shelbyville, for appellees.

SETTLE C.J.

This appeal brings to us for construction the following deed:

"This indenture made and entered into this 23d day of February 1906, by and between Frank P. Hammond and Martha M. Hammond his wife of the county of Shelby and state of Kentucky of the first part, and Robert Innes of the county of Franklin and state of Kentucky of the second part, as follows, to wit: In fee simple and with absolute title to said Robert Innes to sell and convey if he sees fit, but at the death of said Robert Innes (if not sold by said Innes during his life) the same to become and be the property of said Robert Innes' present wife Nancy Innes during her life and at her death to become the property of Milton Spicer the adopted son of said Robert Innes and Nancy Innes absolutely with power to sell and convey, provided that said Milton Spicer shall live and conduct himself as a natural child live with and care for said Robert Innes and his adopted mother Nancy Innes be dutiful obedient and take such interest in the conduct of the said farm as if it were his property in fact and at his, the said Milton Spicer's death to become the property of said Milton Spicer's children equally. The foregoing witnesseth--That the said parties of the first part for and in consideration of the sum of three thousand five hundred dollars in the aggregate paid and to be paid as follows to wit--Twelve hundred dollars cash in hand paid the receipt of which is hereby acknowledged and the sum of eleven hundred and fifty dollars to be paid on the first day of March, 1907, and the further and last sum of eleven hundred and fifty dollars to be paid on the first day of March, 1908, of which two sums of money the party of the second part has this day executed his two notes each bearing interest thereon at the rate of six per centum from this date March 1st, 1906, until paid and if the interest on either note or either note be not paid when due then the whole debt shall at once become due payable and collectable and a lien is retained on the land hereinafter conveyed to secure payment on said notes in consideration of all of the above first parties have sold and by these presents do grant bargain sell and convey unto party of the second part his heirs and assigns forever with covenant of general warranty of title, a certain tract or parcel of land lying in the county of Shelby and state of Kentucky on the waters of Floyd fork and thus bounded [boundary omitted] with the provision above recited to Nancy Innes wife of said Robert Innes during her natural life and at her death then the land herein conveyed is to go on conditions recited above to Milton Spicer absolutely with power to sell and convey and in case of his death to descend to his the said Milton Spicer's children equally. To have and to hold the above described granted land to second party forever with covenant of general warranty of title against the claims of any persons whomsoever," etc.

Robert Innes, the first-named grantee in the deed, died November 24, 1911, intestate, and his wife, Nancy Innes, May 1, 1911, also intestate. Milton Spicer, referred to in the deed as the adopted son of Robert Innes and Nancy Innes, had been reared by them, and, together with his wife and the one child they then had, lived with them at the time of the execution of the deed in question, and thereafter remained with them on the land conveyed by the deed until their deaths, respectively; two other children being born to Spicer and wife in the meantime. The Inneses never had any children of their own, and it does not appear that Spicer failed in any respect to support and otherwise care for them after the execution of the deed, as required by its terms.

This action was brought by Spicer and his wife to obtain a construction of the deed, in order that it might be judicially determined what interest he took in the land thereunder; it being his contention, as alleged in the petition, that Robert Innes and Nancy Innes each took a life estate under the deed in the land conveyed, with remainder in fee to him (Spicer) and that upon their deaths, respectively, he became the owner of the fee therein. It is alleged in the petition that he desires to sell the land in order to buy a larger farm, but finds some difficulty in procuring a purchaser willing to accept the title he offers to convey. The prayer of the petition asks that he be adjudged the owner in fee of the land, but in the event the court should determine that he has only a life estate therein, with remainder to his children, that the land be sold for reinvestment of the proceeds in other land in such manner as the court may direct. The three infant children of Spicer were made parties to the action, and a guardian ad litem appointed for them, upon whom service of summons was duly had. The guardian ad litem filed an answer for the infant defendants, in which it was denied that Milton Spicer owns the fee in the land, and alleged that under the terms of the deed he took only a life estate therein with remainder to his three children, the infant defendants; the prayer of the answer asking that the court so adjudge. Upon the submission of the case the court rendered judgment declaring that the deed from the Hammonds only conveyed Robert Innes a life estate in the land with power to sell and convey it; but that, as he did not sell or convey it, by the terms of the deed, Milton Spicer, as remainderman, became, at the death of Innes, the owner of the land in fee simple, which would give him the right to sell and convey it by similar title to any purchaser thereof. This appeal, taken by the guardian ad litem, challenges the correctness of that judgment.

It is a well-known rule that in construing a deed the intention of the parties, as it appears from the whole instrument, must control. If...