Whallen v. Kellner

• Decision Date: 07 November 1907
• Citation: 104 S.W. 1018
• Parties: WHALLEN ET AL. v. KELLNER ET AL.
• Court: Kentucky Court of Appeals

104 S.W. 1018

WHALLEN ET AL. v. KELLNER ET AL.

Court of Appeals of Kentucky.

November 7, 1907

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

"Not to be officially reported."

Action by John H. Whallen and others against John F. Kellner and others. From a decree dismissing the bill, complainants appeal. Affirmed.

Kohn Baird, Sloss & Kohn, for appellants.

Gibson Marshall & Gibson, for appellees.

O'REAR C.J.

Joseph Swager, the owner of the lot of land which is the subject of this suit, by his last will devised it to a trustee for the use of the testator's children, named, for their lives with remainder to such of their children, or descendants of their deceased children, as might be living at the death of the life tenants. The remaindermen, it is thus seen, took contingently; it depending upon their surviving the life tenant from whom they were descended whether their estate ever became vested. The nominated trustee refused to qualify. In a suit in equity, brought by the administrator with the will annexed of Joseph Swager against the testator's children, the chancery court appointed a trustee to execute the trust imposed by the will; such being the object of the suit. The trustee sold and conveyed the land, as he was empowered by the will to do. That conveyance is now attacked as being insufficient to divest the contingent remaindermen of title, because in the action in which the trustee was appointed the grandchildren of the testator (the contingent remaindermen then living) were not made parties defendant and it is contended that, as the appointment of a trustee affected their title and interest, they were necessary parties to the action, or the judgment would be void. Clay's Adm'r v. Edwards' Trustee, 84 Ky. 548, 2 S.W. 147, is relied on as sustaining the contention. But in that case the remaindermen had vested, and not contingent, estates. Here, if those in being when the action was brought had all died before their parents, leaving descendants living, or other children had been born to their parents subsequent to the suit, who survived the life tenants or left issue surviving, the result would not have been at all different, so far as having before the court the real parties in interest. It is sufficient in such cases if there is before the court the life tenants, or those having vested interests, whose duty and interest it would be to defend the action,...