29 Ky.L.Rptr. 1296
Court of Appeals of Kentucky.
Nov. 14, 1906.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Suit between J. M. Robsion and Fred Gray and others.
From a decree in favor of the latter, the former appeals.

Malinda Brittin and Elizabeth Gray were the only children of Pierson and Winfred Duncan. In 1847 Pierson Duncan executed a writing, which was put to record in the proper office, conveying to his daughter Malinda Brittin all of his real estate, charging the conveyance with the support of himself and his wife during their natural lives. Pierson Duncan died in 1862, Malinda Brittin died unmarried in 1868, and Winfred Duncan died in 1875. Upon the death of Malinda Brittin, her mother, Winfred Duncan, under the statute then in force, inherited the real estate conveyed by Pierson Duncan to her. After the death of Malinda Brittin, Winfred Duncan made a will which was admitted to probate after her death in 1875. This will reads as follows: "I desire my funeral expenses and doctor bill, if any, paid, and that a suitable tombstone shall be placed at my grave. After the payment of above, it is my desire that my grandson, John G. Gray, shall have all of the land and personal property that I may own at my death. If the said John G. Gray should die leaving a widow, she is to have no dower in the land. It is distinctly understood that the said John G. Gray is never to sell the land or any part thereof to any person whatever. It is my wish that the land descend to the heirs of John G. Gray, and remain in the possession of them and their heirs forever, never to be sold. It is my will and wish that if John G. Gray dies leaving a widow, the land shall be rented for the benefit of the heirs." John G. Gray, in 1885, sold to one Jane Cain, and made a general warranty deed to a portion of the land devised to him by this will, and by various conveyances it finally became the property of appellant. Gray died in 1904, leaving surviving him as his only children the appellees, Fred Gray and M. A. Gray. In this controversy, appellees insist that their father only took a life estate under the will, and that upon his death they became entitled to the real estate devised to him. Appellant contends that Gray took a fee-simple title in the real estate devised. The lower court accepted appellees' construction of the will, and adjudged them to be the owners of the land purchased by, and in the possession of, appellant, and he appeals.

The principal question in the case is whether or not John G. Gray under the will had the fee or a life estate in the land. Looking to all the provisions in the instrument for the purpose of arriving at the intention of the testatrix, we have reached the conclusion that her purpose was to invest John G. Gray with a life estate in the property with remainder to his children. The provision that the land "is never to be sold" in the clause giving it to the heirs of John G. Gray, is void, as creating a perpetuity in violation of section 2360 of the Kentucky Statutes of 1903 although the restriction on the power of alienation by John G. Gray was valid, as, under the statutes, the power of alienation may be suspended during the continuance of the life in being at the creation of the estate. The paper is rather awkwardly written, but there are several expressions in it indicating the intention of the testatrix, such as the limitation on the power of John G. Gray to sell the land--the direction that it shall descend to his heirs and remain in their possession forever, and that his widow shall have no dower in the land, but it shall be rented for the benefit of the heirs--showing a purpose on her part that the land at the death of John G. Gray should pass directly to his heirs, and by the word "heirs" the testatrix meant his children. The chancellor adjudged that appellant was not entitled to the value of the improvements put on the land by him, and this ruling was correct, as appellant, who occupied the position of a life tenant, could not charge the estate in remainder with the value of improvements placed upon it by him, nor does it make any difference that he made the improvements upon the false assumption that he had an absolute title to the property.

We are also of the opinion that, under the circumstances of this case, appellees are not entitled to rents since the death of John G. Gray. Nor can we agree with counsel that Pierson Duncan owned the land conveyed to Malinda Brittin at the time of his death. The paper executed in 1847 by Duncan conveying to his daughter Malinda Brittin the land was not acknowledged by Duncan, nor was an acknowledgment necessary to its validity as between the parties. Pierson Duncan recognized her ownership of the land, subject to the conditions imposed, until his death in 1862, and it is too late for appellant to question the fact that, under this writing, Malinda Brittin did not take the whole of the estate conveyed by it.

The judgment of the lower court is affirmed.

Ky.App. 1906.
97 S.W. 347, 29 Ky.L.Rptr. 1296


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