Citation Numbers: 185 Ky. 487
Judges: Clarke
Filed Date: 10/24/1919
Status: Precedential
Modified Date: 7/24/2022
Opinion of the Court by
Affirming.
This suit was instituted by Emily C. DeLong, one of the four children of Bessie C. DeLong (now Anheir), to recover of C. P. Cecil, trustee under a deed executed by Granville Cecil in 1902, the sum of $1,200.00, alleged to be one-fifth of the net income derived for the five years last past from one of two tracts of land conveyed by the deed of trust. The suit was not brought in equity and does not state grounds for or seek any equitable relief against the trustee or involve any discretionary powers delegated to him, but is a common law action, so styled, seeking to recover of the trustee as an absolute right one-fifth of the revenue derived from the land upon the theory that the beneficial interest in the land during the lifetime of Mrs. DeLong was vested jointly in Mrs. DeLong and her chil
The deed executed in 1902 by Granville Cecil, “party of the first part,” conveys two tracts of land in Boyle county to C. P. Cecil, “party of the second part,” and recites in the granting clause that it was made in consideration of the love and affection which the grantor bears to his daughter, Bessie C. DeLong, and by way of an advancement to her “for the purpose of securing to said Bessie C. DeLong and her children the permanent use and benefit of the property hereby conveyed, upon the terms, conditions and limitations hereinafter set out.”
Following a description of the two tracts of land, only one of which is involved in this action, the deed contains the following clauses, among others not pertinent to this inquiry, setting forth with great particularity the terms, conditions and limitations referred to in the granting clause:
“To have and to hold said two tracts of land together with all privileges and appurtenances thereto belonging unto the said C. P. Cecil, his successors and assigns in trust, however, for the use and benefit of the said Bessie C. DeLong for and during the term of her natural life with remainder in fee to her children. In case any child or children of said Bessie C. DeLong should die during her lifetime leaving children or descendants surviving then said children or descendants of such deceased child or children of said Bessie C. DeLong, shall take such part of said remainder as would be received by said deceased child or children of said Bessie C. DeLong under this deed, if living, at the death of said Bessie C. DeLong.
‘ ‘ The said trustee is to take, hold, and manage and control absolutely the property hereby conveyed and'earn and malee increase with same for the use and benefit of said Bessie C. DeLong and her children, or descendants in such way as in his judgment seems to be to their best interest.
“The trust however, created by this deed shall continue until the youngest child of said Bessie C. DeLong shall reach the age of 21 years and in no event shall it cease during the life of said Bessie C. DeLong, and even though the interest of said Bessie C. DeLong may be*490 divested as aforesaid by the attempt of a creditor to subject her interest to the payment of debt it shall nevertheless be divested subject to the discretionary right of the trustee to make such appropriations out of the net income of the estate hereby conveyed as will secure to said Bessie C. DeLong the ordinary comforts of life so long as she shall live, but the exercise of this right is left purely to the discretion of the trustee. The trustee is hereby empowered to allow said Bessie C. DeLong and her children to continue in possession of the lands hereby conveyed and to use, occupy and enjoy the same, or any part thereof, as fully and freely and as long as he may deem it to their best interest’to do so.
“The said trustee is empowered to use the lands hereby conveyed in such manner as he may deem in the exercise of reasonable judgment to be for the bést interest of Bessie C. DeLong and her children. Said trustee may use all or any portion of the rents, increase and profits of this estate for the benefit of said Bessie C. DeLong and her children as his judgment may approve or he may if he sees fit reinvest same in land or securities subject to all the terms, limitations and conditions and provisions of this deed as to the estate hereby conveyed.”
It will be noticed that in the first of these several .clauses the grantor states in positive terms that his daughter, Bessie C. DeLong, is to have the use and benefit of the land for and during her natural life with the remainder in fee to her children and the descendants of any of the children dying before their mother. It is insisted, however, by the plaintiff, that this clearly expressed purpose of the grantor to secure to his daughter and her children the permament use and benefit of the property conveyed by giving same to the daughter during her life with the remainder to her children or their descendants must give way to the subsequent clauses quoted above, in which, it is.insisted, he manifests his purpose and intention to make the children of his daughter, Bessie C. DeLong, joint beneficiaries during her lifetime in the trust estate. But we are clearly of the opinion that this construction of the deed as a; whole is unwarranted, for we are convinced that the first of the clauses' above quoted was meant by the grantor to be, as it is in form, the habendum clause, and that he therein expressed his purpose and intention to give a life estate to his daughter, with the remainder to her children or their descendants,
It is clear, therefore, that the deed did not vest in the plaintiff an undivided one-fifth in the profits from this land, or any other interest therein during the lifetime of her mother as a matter of absolute right, and that the court did not err in sustaining the demurrer to the petition, if, as we have stated, it asserted no ground for equitable relief against the trustee. It merely alleges that plaintiff is more than twenty-one years of age, that her parents are divorced, and that for five years she has lived with her father rather than NitiHier mother, and has
Wherefore the judgment is affirmed.