Vittitow v. Keene
| Decision Date | 19 June 1936 |
| Citation | 265 Ky. 66,95 S.W.2d 1083 |
| Parties | VITTITOW v. KEENE et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Daviess County.
Action by Robert Perkins Keene and others against J. A. Vittitow and others. From a judgment for plaintiffs, the named defendant appeals.
Reversed with directions.
George S. Wilson, Jr., of Owensboro, for appellant.
Cary Miller, & Kirk, of Owensboro, for appellees.
Mrs Clara H. Keene died testate on November 27, 1930, a resident of Daviess county, Ky. Her estate consisted of some personalty, a $50,000 life insurance policy with the Mutual Life Insurance Company of New York, and a number of parcels of real estate, some of which was improved and some unimproved city property, and the remainder of which consisted of farming lands in rural sections of her county. She directed that her debts be paid out of her personalty including her life insurance, and then made separate specific gifts of certain articles of her personal property to her three living children. Item 3 of the will says:
The next item (4) postpones the division of her estate amongst her three children, as life tenants, until the youngest of them arrives at the age of 21 years, when a division might be had, and each of them was then given "the right from that time forward to possess, manage and control his share as long as he shall live." Other provisions which have no bearing upon the questions here involved were made, and in item 7 the testatrix said: "I do not desire that any of my property shall be sold for reinvestment, or for any other purpose, as long as one of my three children hereinbefore named shall be living, and I hereby expressly prohibit any such sale being made." The son of the testatrix died without leaving issue and unmarried. According to the terms of the will the two surviving sisters shared all of the property for and during their natural lives as a consequence of his death without issue. The personal property of the testatrix, plus her insurance, was insufficient to pay her debts by something in the neighborhood of $25,000, and it was secured by mortgages on some of the improved real property in condition to produce income, but the vacant city property of which there was a considerable portion was and is nonincome producing. On the contrary, it was and is a burden upon that which did produce income because of taxes, city improvements, and other expenses.
In the circumstances and under the conditions, the two daughters, the appellees and plaintiffs below, entered into a written contract with the appellant and one of the defendants below, J. A. Vittitow, by which they agreed to sell and convey to him a city lot, carved out of a larger parcel of unimproved city property, for the consideration of $1,000 which he agreed to pay on condition that they could convey to him a good title; but before executing and tendering a conveyance to him they filed in the Daviess circuit court this declaratory judgment action against him and the other defendants, the appellees Elizabeth M. Boone and Kitty Stuart Holbrook and their husbands (the alternative devisees under the executory devise contained in item 3 supra of the will), and in their petition they alleged that, because of the nature of the property (which was real estate exclusively) and its condition the expenses in keeping up that which was income-producing, and the payment of taxes on that which was nonproductive of income, plus expenses of interest and installments on the unpaid balance of the debts secured as stated, they were reaping comparatively no net income, and that the probabilities were that such conditions would continue so as to practically deprive them of the benefits of their life interests, unless the debt could be paid by a sale of the nonproductive or vacant property, and thereby relieve that which was productive of the burden of the debt. They further alleged that if the property which they desired to sell for the stated purpose (a part of which was the lot conveyed to Vittitow) should be sold at decretal sale, it would bring much less than if they (or all of the living devisees who were in esse) could make the sale privately, and they asked that the court decree their right to sell the property privately upon conditions that the proceeds be applied to the extinguishment of the balance of the mortgage indebtedness.
The two contingent devisees (defendants under the executory devise contained in the will) filed a pleading consenting to such a decree; but Vittitow demurred to the petition, which the court overruled. He then filed an answer in which he questioned the right of any or all of the living devisees to make sale of the property at private sale, and also their right to sell it at all under the prohibitory language contained in item 7 of the will. Following motions and pleadings made the issues, and, after evidence taken in substantiation of the allegations of the petition, the court rendered judgment in accordance with its prayer, and from that judgment Vittitow alone has appealed.
Learned counsel for appellees in support of the judgment urge upon us what they designate as the broad powers of equity in what they term emergency conditions, such as those claimed to be asserted in the petition and proven by the testimony; but we will not stop to discuss any of those matters, since so far as the purposes of this case are concerned all of the argument might be admitted and still the judgment be unauthorized. The equity principles for which they contend cannot be given effect, nor may they be resorted to when to do so would be in direct conflict with settled legislatively enacted...
To continue reading
Request your trial
- Manufacturers Bank & Trust Co. of St. Louis v. Kunda
-
Digenis v. Young
...provisions. Only when there is no law or precedent does a court have the authority to exercise pure equity. Cf. Vittitow v. Keene, 265 Ky. 66, 95 S.W.2d 1083, 1084 (1936) ("[E]quity principles . . . cannot be given effect, nor may they be resorted to when to do so would be in direct conflic......
-
Seeger v. Lanham
...Only when there is no law or precedent does a court have the authority to exercise pure equity." Id. (citing Vittitow v. Keene , 265 Ky. 66, 95 S.W.2d 1083, 1084 (1936) ). Thus, "[l]aw trumps equity." Bell, 423 S.W.3d at 748. Under the American rule, "attorney’s fees in Kentucky are not awa......
-
Adams v. Security Trust Co.
... ... insisted for the appellants that under Powell v ... Hester's Devisees, 271 Ky. 838, 113 S.W.2d 456, ... which followed and approved Vittitow v. Keene, 265 ... Ky. 66, 95 S.W.2d 1083, that the chancellor cannot approve a ... private sale where the title of contingent remaindermen was ... ...