Fentress v. Holmes

5 Ky. Op. 21, 1872 Ky. LEXIS 163

• Court: Court of Appeals of Kentucky
• Decided: February 23, 1872
• Status: Published

Opinion

Opinion of the Court by

Judge Lindsay:

The devise to Dulcena B. and' Josephine B. Tunstall and their children vested the first takers with life estates in the tract of land devised1 with remainder over to such children as might thereafter be born to them.

At the time of the death of Josephine, she had but one child, the present appellee. The title to one-half of the tract of land passed to him upon' his mother’s death, and' his right of entry at once accrued.

We are not satisfied from the evidence that the mother of appellee ever accepted the deed to sixty acres of the land, made and executed by her father several years before his death.

She seems to 'have been aware that such deed1 had been executed 'but there is no single fact proved tending to show that she ever claimed any right under it, or in any way failed to recognize her father’s title. Besides this, she accepted the estate devised to her, with the conditions imposed upon it. The testator claimed the right to dispose of the entire tract, and then doubtless recognized his right to convey such title as they could have taken under the deed to the 60 acres, with life estates, with remainder to their children. They could not claim the estates devised to them in the balance of 'the tract, and deny the right of the testator to dispose of the 60 acres in question, and thereby defeat the interests therein intended to be secured to their children.

We do not deem it necessary to discuss the other questions raised in the arguments presented by counsel, as the judgment of the circuit court must necessarily be affirmed for.the reasons already given.