Stewart v. Brady
| Decision Date | 27 June 1868 |
| Parties | Stewart and wife v. Brady. |
| Court | Kentucky Court of Appeals |
1. " I devise to my daughter, Adeline B. Tunstall forty-two acres of land whereon I reside, to hold to herself said Adeline, and her heirs, in fee simple, subject to the following conditions and restrictions: The forty-two acre tract shall, in no way be disposed of, by deed of gift or sale, by her, until she arrives at the age of thirty-five years. " Held --That the limitation on the use was not inconsistent with the fee, and was therefore valid, although the limitation is only against her own voluntary act of alienation, yet, as a decretal sale could not be legally made without her consent and her act, the interdiction constructively applies to any such sale, unless for payment of debts for which she might be legally bound and as it does not appear that she owed any such debts, the first decree obtained on the petition of her husband, by her consent, to sell so much of the land as was necessary to pay debts, was unfounded and unauthorized; and that the last decree obtained on the petition of her husband, by her consent, to sell the land as beneficial to his wife, under the provisions of article 5, chapter 86 of the Revised Statutes, was also erroneous.
2. The highest bidder for land at a decretal sale being ruled, to show cause why he refused to comply with his contract, responded by showing that the land was not subject to sale.--The rule was properly discharged.
APPEAL FROM LOUISVILLE CHANCERY COURT.
JOHN RODMAN and ROBERT W. HAYS, For Appellant.
WM. MIX, For Appellee,
CITED--
3 J. J. Mar., 321; Berry vs. Headington.
2 B. Mon., 462; Pattie vs. Hall.
1 Redfield on Wills, pp. 445-6, 431-433, and paragraphs 1, 6, 2, of sec. 17.
17 B. Mon., 740; 3 Metcalfe, 159.
18 B. Mon., 375; Williamson vs. Williamson.
Revised Stat., 426-7, Myers' Sup.
Revised Statutes, chap. 86, sec. 6, art. 5.
The solution of the radical question in this case depends on the constructive effect of the following devise in the will of Elizabeth Tunstall, deceased:
" I devise to my daughter, Adeline B. Tunstall, forty-two acres of land whereon I reside, to hold to herself, said Adeline, and her heirs, in fee simple, subject to the following conditions and instructions: the forty-two acre tract shall, in no way, be disposed of, by deed of gift or sale, by her, until she arrives at the age of thirty-five years."
Some years after the date of the will, Adeline intermarried with E. S. Stewart, who filed a petition in equity for the sale of as much of said land as might be necessary for the payment of debts, making his wife and the creditors parties, who united in the prayer for sale, which the chancellor decreed accordingly. Shortly after that decree the said husband under the authority of article 5, chapter 86, of Revised Statutes, filed another ...
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