Thomas v. Utterback

• Decision Date: 05 March 1954
• Citation: 269 S.W.2d 251
• Parties: THOMAS et al. v. UTTERBACK et al.
• Court: United States State Supreme Court — District of Kentucky

Page 251

269 S.W.2d 251

THOMAS et al. v. UTTERBACK et al.

Court of Appeals of Kentucky.

March 5, 1954.

As Modified on Denial of Rehearing June 25, 1954.

Mooney & Turley, Lexington, for appellants.

F. C. Bryan, Mount Sterling, for appellees.

WADDILL, Commissioner.

Appellants are numerous children, grandchildren, and great-grandchildren of Verlinche Utterback, who died testate in Bourbon County in 1931. Appellee, Benjamin S. Utterback, is a son of Verlinche Utterback who brought a suit in equity in 1953 to have his mother's will declared invalid as violating the rule against perpetuities, and to have cancelled a deed from his father to him under which he took a life estate in certain property, and to have a new deed granting him a fee in the property issued by the Court. Appellee won a judgment, from which this appeal is taken, awarding him the relief sought.

The will of Verlinche Utterback provided that each of her four children was to have a one-fourth interest in 150 acres of land for life, and at his or her death the same was to pass to any child or children he or she might leave surviving, for and during the life or lives of said children (testatrix's grandchildren) with remainder in fee simple to vest in the issue of her great-grandchildren per stirpes. Testatrix's will also contained a provision that any one of her children might sell his interest provided the proceeds of the sale were reinvested in other land and the title thereto taken in accordance with the terms of the will.

About eight months after the death of Verlinche Utterback her four children conveyed their entire interest in the 150 acres to their father, Hezekiah, for $9,000. On the same day in 1931 for valuable consideration, Hezekiah Utterback made a deed to each of his children. These four conveyances included the 150 acres of land devised by Verlinche Utterback and in addition, all of the land owned by Hezekiah. Appellee's deed, after reserving a life estate to Hezekiah, conveyed to appellee a life estate in 157 acres of land for $2,250, with remainder to appellee's surviving children, or in the absence of surviving children, to appellee's heirs.

Appellee admitted that there was some discussion among the persons concerned back in 1931 respecting the possible invalidity of his mother's will, but that they decided not to contest it. Appellee was 45 years of age in 1931 and was fully informed of the terms of his mother's will and of the agreement into which he entered with his father.

It is appellee's contention that he is seeking a declaration of rights concerning the construction of his mother's will; that the deed from his father created the same type of estate in the 150 acres as did the will; and that the deed should be reformed to comply with the will as construed. One of the principle difficulties with appellee's contention is that the will did not create a fee in the testatrix' children, and if the deed conformed to the will, appellee does not have a fee.

The only ground on which appellee could be held to...