Hermann v. Parsons

Opinion op the court by JUDGE NUNN Reversing. In the year 1871, C. B. Parsons died in Jefferson county, ■Ky., leaving a will, which was duly probated, by which he made devises to each of his seven children; H. B. Parsons, the father of these appellees, being one of them. He also, by the eighth item of his will, made a bequest to his wife, Emily C. Parsons. We quote so much of this item as will aid in elucidating the question to be considered. After giving her the property for life, he used this language: “At the death of my wife, in her widowhood, all of my property reserved to her in this'item, both real and personal, shall be sold by my executors, and the proceeds equally divided among my heirs. My wife shall have power for good and sufficient cause to disinherit from the interest embraced in this item, any of my children, but in the event of her doing so, the interest so retained shall not be devised or given to- another, but shall be embraced in the general fund to be divided with the rest among my remaining heirs. Should my widow marry, it is my will that she shall have no power whatever to disinherit any one of my children so far as the property devised to her is concerned, but they shall take the property as my heirs under this will.” “She shall not have power to alienate, sell or encumber any of the real estate whatever, but shall keep the same intact. Should any of my children die (and by heirs I mean children) leaving issue (lawful) of their own, such issue shall stand in the place of their dead parent, and take in equal division among them what would have been under this my last will, their parent’s share in my estate.” [245] H. B. Parsons, one of testator’s children, and father of these appellees, died in the year 1879. The widow of the testator died in the year 1898, and after her death the executors and heirs of C. B. Parsons brought an action in the chancery court to sell the real estate so devised to his widow for life for the purpose of a division of the proceeds among his heirs, as directed by the will. The appellees, as children of H. B. Parsons, were made defendants, and they answered and made their answer a cross-petition against appellant, P. G. Hermann, alleging that a certain parcel of real estate situated in Louisville, Ky., on the corner of Thirty-third and Bank streets, describing it, belonged to O. B. Parsons, and was by liim devised to his widow for life under the eighth item above referred to in this opinion, and that their father, H. B. Parsons, died in the year 1879, and before his mother died, and by reason thereof, and under the provisions of the will of C. B. Parsons, they took a fee-simple interest in this real estate, and that appellant, P. G. Hermann, was in the possession of this piece of property on the corner of Thirty-third and Bank streets, and was setting up some claim thereto; and asked that he be summoned to answer, and they be adjudged the owners of one-seventh interest therein, and that this interest be sold, and the proceeds be divided between them. The appellant answered, and alleged that he was the sole owner of this piece of real estate. That he derived his title in the following manner: That on the twelfth day of September, 1874, there was instituted in the chancery court of Louisville an action by one T. Hansley against the widow of C. B. Parsons and his seven children, all of whom were served with process, in which action Hansley sought to enforce a lien held by him upon the property described in that and in this action, which lien existed for [246] the cost of improving Thirty-third street; the court in that action enforced a' lien, directing a sale of the property, which was sold in satisfaction of the lien debt; Mary Parsons became the purchaser, and a deed to the property was made to her by the court’s commissioner; and that he has obtained a fee-simple title to this property from the vendees of Mary Parsons. The parties filed other pleadings, which we deem unnecessary to explain. It is sufficient to say that the only question necessary to be determined on this appeal is whether or not, on the facts already stated, the appellant or appellees own this one-seventh interest in this lot on corner of Thirty-third and Bank streets. It is agreed that these appellees were not parties to the Hansley suit, but that their father, H. B. Parsons, and his mother, the widow of C. B. Parsons, were parties to that action. It is contended by the appellees — and the lower court agreed with them — that they had a remainder interest in this property under the will of their grandfather, and before they could be deprived of their interest in this property it was necessary that they should! have been mgde parties to that action, and, as they were not parties thereto, they still owned their interest. We are of the opinion that the lower court'erred. These appellees, under this will, merely held contingent remainder interests. 'Their grandmother held the life estate, and their father the fee, subject to be defeated by his death before his mother’s death. The general rule is that it is sufficient to bring before the court the persons whose several interests combined make up the first estate of inheritance. As these appellees’ grandmother and their father were parties to that action, and they owned together the first estate under the will at that time, it was unnecessary to have made appellees parties, as they were only contingent remaindermen, and were bound by repre [247] sentation. See Calvert on Parties, p. 251; Freeman on Judgments, section 172. The reason for this rule is stated in Faulkner v. Davis, 18 Grat., 690, 98 Am. Dec., 698, where the court said: “This rule of representation often applies» to living persons who are allowed to be made parties by representation for reasons of convenience and justice, because their interests will be sufficiently defended by others who are personally parties, and who have motives both of self-interest and affection to make such defense, and they therefore consider it unnecessary to make such persons parties, and, indeed, improper to do so, and thus compel them to litigate about an interest which may never vest in them.” Their father, who held the first estate subject to the life estate of his mother, was a party. He had a motive of self-interest and affection to cause him to make defense. We have not been able to find a case in point, decided by this court, but there are several cases which appear to recognize the correctness of the rule stated. A distinction has been pointed out, however, in Kentucky, between cases where contingent remaindermen’s rights are affected by a judgment obtained by one in privity with his estate and by a stranger to the instrument by which such contingent remainder has been created. This distinction has been clearly pointed out in the case of Johnson v. Jacob, 11 Bush, 646. In that case the court said: “It has frequently been held that a stranger to the instrument by which contingent limitations upon the title to real property are created may by judgment regularly obtained against the life tenant in possession, bar the contingent remaindermen. The reason for this rule is obvious. If such was not the rule, the deed or will of a grantor or testator might so limit the title passed as to leave the holder of an outstanding and paramount title without remedy because of his not being able, until after the happening of [248] some remote event, to ascertain the persons against whom to institute this action. . . Our attention has been particularly called to the case of Gifford v. Hart, 1 Sch. & Lef., 407; Faulkner v. Davis, 18 Grat., 684, 98 Am. Dec., 698. In each of these cases the complainant was a stranger to the title under and through which the contingent remaindermen claimed title.” In the case of Fritsch v. Klausing (11 R., 788), 13 S. W., 242, the court said: “All the parties having a vested interest were represented and had their day in court. The sale was made, and A. S. Klausing became the purchaser, and, we presume, complied with the terms of the sale. It was not necessary to make those who might be heirs of Anderson parties to the action. Their interests, if any they had, were of so remote a character as not to be estimated or defined.” Also, see R. A. Robinson’s Sons v. Columbia Finance & Trust Co., (19 R., 1771), 44 S. W., 631; 17 B. Mon., 374; Park v. Humpech (20 R., 879) ; 47 S. W., 768. T. Hansley who enforsed this improvement lien on this lot, was a stranger to the instrument or will by which the contingent limitations upon the title to this real estate were created, and did so by reason of his judgment regularly obtained against the life tenant in possession and H. B. Parsons, who held the first estate in remainder. Consequently, under the authorities referred to, we are constrained to hold that appellees have no interest in the lot described. Therefore the judgment of the lower court is reversed, and cause is remanded for further proceedings consistent with this opinion.