Stallcup v. Cronley's Trustee

• Decision Date: 05 February 1904
• Citation: 117 Ky. 547,78 S.W. 441
• Parties: STALLCUP et al. v. CRONLEY'S TRUSTEE et al.
• Court: Kentucky Court of Appeals

78 S.W. 441

117 Ky. 547

STALLCUP et al. v. CRONLEY'S TRUSTEE et al.

Court of Appeals of Kentucky.

February 5, 1904

Appeal from Circuit Court, Fayette County.

"To be officially reported."

Suit for partition by Sarah B. Cronley's trustee and others against Mary P. Stallcup and others. From a judgment for plaintiffs, defendants appeal. Reversed.

J. D. &amp G. R. Hunt, for appellants.

Morton Webb & Wilson, for appellees.

O'REAR J.

The will of Joseph Bruen, probated in Fayette county, this state in 1848, gave his estate to his three daughters (after provision for his wife). He gave to each daughter her portion, to her sole and separate use during her life, and after her death to her surviving children in fee simple; but that, if any daughter died without issue, her portion was then to go to her surviving sisters, if living, but, if dead to their issue. The children of his children were expressly made the representatives per stirpes of their parents in taking the estate in the contingencies mentioned. The testator had three daughters--Mrs. Ingles, Mrs. Sarah B. Cronley, and Mrs. Shelby. Mrs. Cronley was the last of the three to die, and she had no children. Mrs. Ingles had several children. Mrs. Shelby one. Mrs. Shelby's child is appellant Mary B. Stallcup. At her death Mrs. Cronley owned in her own right a considerable estate, derived from her deceased husband. Besides, she owned, in the hands of a trustee, from $30,000 to $35,000 of estate derived under the will of her father, Joseph Bruen. Of this it is claimed $26,850 is personalty. In 1870, directly after appellant had left school and returned to the home of her aunt, Mrs. Cronley, with whom it seems she had been making her home for some years, appellant, at the instance of Edward Cronley, Mrs. Cronley's husband, executed to him a conveyance in the form of a deed of trust, conveying to him, in trust for his wife, all of said Mary P. Shelby's interest (she was then unmarried) in the trust estate of Mrs. Cronley under her father's will. The deed was in consideration of natural love and affection and $1, and contained no warranty. At that time the great bulk of the estate so attempted to be conveyed was personal property, though some part of it was real estate. Mrs. Cronley died a year or so ago, leaving a will, the principal if not the sole effect of which was to dispose of her estate derived from her husband, Edward Cronley. In this suit to settle and partition Mrs. Cronley's estate, brought by her executor, the executor and the heirs of the Ingles branch claim that by her deed made in 1870 appellant conveyed to Mrs. Cronley the remainder interest owned by her in the Bruen trust estate, being one-half thereof, and that as to that half Mrs. Cronley died intestate. As to the other half, the Ingles family took as remaindermen under Bruen's will. Appellant contends that her attempted conveyance of her contingent interest in the trust estate held by Mrs. Cronley for life was void, especially as to the personalty. The effect of the difference is to give appellant, as heir at law of Mrs. Cronley of the personal estate, say $6,712.50 less than she would take otherwise. Appellant contends that the deed of 1870 is invalid as an executed conveyance, because her interest then was only that of an executory limitation or devise, which was not the subject of a conveyance at law.

While the common law originally admitted of no estate in personal property, regarding its title as its possession, as inseparable, yet that distinction has long been obsolete, and now life estates and remainders may be created in personal property. Language which would create a life estate and a reversion or remainder in lands may, with equal assurance sever the title to personal property, giving it for a term or life to one, with the remainder to others, upon the same contingencies as land is devised, guarding always against perpetuities. How far certain remote and contingent interests thus created in personal estate are the subject of conveyance by deed or executed contract is, and from the beginning has been, a troublesome question. The same difficulty naturally existed concerning the conveyance of similar interests in real estate. And they would arise more frequently and were far more important then, because generally it was the title to real estate only that was subjected to such limitations. Not for a long while afterward were they allowed as to personalty. The early cases--and, indeed, nearly all the cases and texts--hold that such interests, as executory devises or limitations, are not alienable at common law. To obviate the difficulty of this rule, and to facilitate the transfer of titles to land, legislative enactments have been resorted to. In this state a statute of that nature has been in effect for many years. It is now section 2341, which reads: "Any interest in or claim to real estate may be disposed of by deed or will in writing. ***" This language is so comprehensive as to include an executory devise. It is conceded by appellant, and we think it is clear...