Roederer v. Hess

Opinion of the court by JUDGE HOBSON Reversing. Jacob Roederer died on March 6, 1879. He devised the property in contest to his children. The will provided that the real estate should not be soM until the youngest child was of age. He left eleven children. The youngest was of age on August 6, 1900. Previous to this, however, one of the sons sold and conveyed, with general warranty, his interest in the land to appellant C. Mann, in October, 1894, and shortly thereafter three of the other children conveyed their interest to pne of their brothers by like deeds. On August 7, 1900, or the day after the youngest child was of age, this suit was filed for a sale of the property and division of the proceeds. The four children who had con [808] veyed their interest were not made parties to the action, but their vendees were. The court ordered the property sold. Appellees purchased it, and then filed exceptions to the sale on the ground that the title they acquired was not good. The court sustained these exceptions and set aside' the sale. The ruling of the court was based on-the fact that four of the devisees had sold and conveyed their interest in the land before the youngest child-was of age, and it was held that this was in violation of the provisions of the will. The will contains no devise' over. The clauses of the will referred to are in these words: “I give and devise the residue of all my property, real, personal, ’ and mixed, of which I may be possessed at the time of my death, to my children that may be then living or may equally divided between them all . . . provided, however, that none of the real estate so devised shall be sold until my youngest child shall be of lawful age.” The thing in the mind of the testator was the equal division of the estate among his children. The restriction on^the sale of any of the land until the youngest child was of age was aimed to secure this equality. Conditions against alienation 'are strictly construed. Warfield v. English 11 R., 263, (11 S. W., 662); Lindemeier v. Lindemeier, 91 Ky., 264 (12 R., 766), (15 S. W., 524). The language of the clause before us is entirely different from one whereby one or more of the joint owners of the property is prohibited from alienating his interest in it until a given date. Young v. Young (20 R., 1741), (49 S. W., 1074). At the death of the testator one of the children was unborn. The provision of the will was designed to forbid a sale of the land until the youngest child was of age, so as to protect the interest of the Infant children, but no restraint was imposed upon the devisees’’ selling] their interest in the land. The purchaser from them took their [809] undivided share subject to the terms of the will forbidding a sale of the land until the youngest was of age, but the language of the will' does not go further than this. It appears from the will that the testator had made advancements to two of his children, and there is nothing in the will to indicate that the testator intended to tie the hands of the older children for something like 21 years, and prevent them from disposing of their interest in the property devised, regardless of the necessities which changing conditions might bring about. It must be presumed that, if the testator had designed to forbid all his 11 children alienating their interest in the land until the youngest was of age, he would have used words more aptly expressing this intention. He knew that some of his sons before that time might be nearly 40 years old. There appears no reason for such a restriction on all the children. The language of the will does not require this construction. It goes no further than to postpone the period of distribution. The title vested in the devisees immediately, and this title they could sell. Kean v. Tilford, 81 Ky., 600, (5 R., 655); Young v. Kinkead’s Adm’rs, 101 Ky., 252, (19 R., 396), (40 S. W., 776). By section 490, Kentucky Statutes, the owner may convey any interest in lands not in the adverse possession of another. By section 1681, “land to which the defendant has a legal title in fee, for life or for term, whether in possession, reversion or remainder, may be taken and sold under execution.” The interest of each of the children in this land was subject to execution, under this provision. If sold under execution, it would pass to the purchaser subject to the restrictions of the will, and he would then become tenant in common with the other children. The devisees could do directly what might have been accomplished through the form of an execution or judicial sale for debt. Their selling the [810] land prejudiced no one. It defeated no purpose of the testator, and it is not within the language or spirit of the provision of the will forbidding a sale of the land until the majority of the youngest child. Judgment reversed and cause remanded, with directions to the circuit court to overrule the exceptions and confirm the sale.