Webb v. Trustees of First Colored Baptist Church

• Decision Date: 08 April 1890
• Citation: 90 Ky. 117,13 S.W. 362
• Parties: WEBB v. TRUSTEES OF FIRST COLORED BAPTIST CHURCH OF LEXINGTON et al.
• Court: Kentucky Court of Appeals

13 S.W. 362

90 Ky. 117

WEBB v. TRUSTEES OF FIRST COLORED BAPTIST CHURCH OF LEXINGTON et al.

Court of Appeals of Kentucky.

April 8, 1890

Appeal from circuit court, Fayette county.

"To be officially reported."

Breckinridge & Shelby, for appellant.

D. G Falconer, for appellees.

BENNETT J.

Landon Ferrell willed to Elizabeth Jackson certain real estate situated in the city of Lexington, and certain other real estate to Eleazor Jackson, situated in said city. The said estate was devised to each devisee in fee, but the same was subject to the defeasance that, if either devisee should die before or after the death of the devisor, without leaving lawful issue, or the descendants of such issue, the estate devised to such devisee should go to the other devisee; and if both should die, before or after the death of the devisor without leaving lawful issue, or the descendants of such issue, then the estate devised to both should be sold, and the proceeds divided between the First Colored Baptist Church of Lexington, Morton City School, and the Orphan Asylum of Lexington, one-third to each. Eleazor Jackson died without having left surviving him living issue, or the descendants of such issue; consequently, Elizabeth Webb, formerly Jackson, took Eleazor's part of the estate. Said Elizabeth had one child by her husband, the appellant, which died in infancy, and some time thereafter the mother died without having any other child or children. This suit was instituted by the appellees to have said property sold, and the proceeds divided among them in accordance with the provisions of the will. It is too plain for serious controversy that Eleazor and Elizabeth took, under said will, a fee, subject to be defeated by their deaths, without leaving living lawful issue, or the descendants of such issue, in which event the appellees took the estate.

There are no words in the granting clause of the will indicating that the testator intended to devise any estate to the children of Eleazor and Elizabeth Jackson. The estate is willed to these two persons in language that conveys to them an absolute estate, subject only to be defeated upon their dying without living issue, or the descendants of such. But Elizabeth having had a child by the appellant, the question is, is appellant entitled to a curtesy in the land? This question is settled by this court in the case of Northcut v. Whipp, 12 B. Mon. 71-76, in the...