Patterson v. Hutchison

2 Ky. Op. 460, 1868 Ky. LEXIS 450

• Court: Court of Appeals of Kentucky
• Decided: October 14, 1868
• Status: Published

Opinion

Opinion op the Court by

Judge Robertson :

In. this case the husband bought and paid for the land and had the legal tifie conveyed to himself in trust for the separate and exclusive use of his wife and of the children of her body during her life and after her death, the remainder for said children.

Constructively, the right of the children was a remainder only. The separate use during their mother’s life (meaning separate from her husband) could not reasonably apply to them, and if it could, it would have been incongruous and absurd to give to them a freehold estate for life, and then add to it the remainder in fee simple. Consequently, the mother was entitled to hold the whole usufruct during her life.

And, under the authority of the 17 th section of Oh. 47, Art. 4, Rev. Statutes, and of the Amendatory act of 1866, Myers’ Suppt. p. 728, the husband who was not only trustee but'substantial donor of the trust, had legal authority in conjunction with the wife to sell or mortgage for her support her interest. To that extent therefore, the mortgagee in this case" has a right to a sale for the payment of his mortgage debt.

Kincheloe & Lewis, Walker, for appellant. (Jofer, for appellees.

But the circuit court construing her interest as only one-sixth of the life estate, jointly with her five children, limited the sale to that sixth.

This we adjudge erroneous.

Wherefore, the judgment is reversed, and the cause remanded for a decree subjecting to sale- the entire life estate.