tor ascertained from the consideration of the entire will, the language used, and the adjudged legal effect of the use of similar language. 9. Wills 775-Vested remainders held not defeated by death before termination of life estate. Under a will giving real estate to the testator's wife for life and directing that upon her death it should be sold and the proceeds divided between the testator's sons therein named, with nothing to indicate that the testator intended that the death of the sons prior to the termination of the life estate would work a defeasance, and no disposition made of the remainder interests in that case, the remainders were not subject to be defeated by the death of the remaindermen before the death of the life tenant. 10. Conversion 22(2)-Parties entitled may elect to take land in lieu of proceeds. Where there has been an equitable conversion of realty into personalty by an explicit direction in a will for the sale of lands and the payment of the proceeds by the executor to certain legatees, the beneficiaries may elect to treat the proceeds which they are to receive from the sale as real property and thereby convert the property into realty and take the land in lieu of the proceeds, provided that this does not damage the owner of the particular estate. Action by Z. M. Sherley and others against Susan M. Sherley and others. From a judgment dismissing the action on demurrer, plaintiffs appeal. Affirmed. Shackelford Miller and Shackelford Miller, Jr., both of Louisville, for appellants Ed. H. S. A. Anderson, of Louisville, for appellant Percy E. Smith, H. B. Fleece, and J. J. Hancock, all of Louisville (R. W. Hunn, of Louisville, of counsel), for appellees. tate in 1879. His last will and testament was HURT, C. J. Zachary M. Sherley died tesduly probated. The first and second clauses of the will are as follows: "(1) I give my beloved wife, Susan M. Sher ley during her natural life, the house and lot on the south-west corner of Third and Chestnut streets, in the city of Louisville (my present residence), and I give to her absolutely all the furniture in said house, of every kind and description; also, all my horses, carriages, and equipment. I, also, give to my wife, either in lawful money or in such bonds, stocks or notes ($60,000.00), sixty thousand dollars, to be paid to her within a reasonable time after my death. If she shall elect to take stocks, bonds and notes, then she shall take at the prices fixed by 11. Conversion 22 (2)-Requisites of recon- the appraisers hereinafter named. My object is version stated. Where a will converts realty into personalty by a direction for the sale of the realty and division of the proceeds, it is essential to a reconversion into realty that all the persons entitled to receive the proceeds be sui juris, able to make an election, and all concur in some affirmative act denoting the fact that the election has been made. 12. Conversion 22 (2)-Executor's power of sale extinguished by election to take land. Where a testator directs lands to be sold by the executor, and the proceeds paid to certain devisees who have sufficiently manifested their election to keep the land instead of the proceeds, the executor's power to sell is extinguished whether he has a mere power of sale without title or whether title is by implication conferred upon him with no other trust than to sell the land and pay over the proceeds to the beneficiaries. 13. Conversion 22(2) Beneficiaries held au- Where a will gave land to the testator's wife for life and directed that upon her death it should be sold and the proceeds divided between the testator's sons, and the sons were sui juris, with power to contract, and no other person had an interest, they could elect to convert the personalty into realty without awaiting the termination of the life estate and made such election by executing a deed of their interests to the life tenant. to make her comfortable and independent. Hoping and believing that the provision I have made will be satisfactory to her. "(2) Upon the death of my wife, I direct that the house and lot, hereinbefore given her for and during her natural life, should be sold by my executor at public auction, after reasonable advertisement on such terms as my executor may deem most advantageous, and the proceeds equally divided between my three sons, John C., Thomas H., and George Douglas Sherley." it. The executor of the will was nominated by The widow, Susan M. Sherley, is yet alive, but the remaindermen, John C., Thomas H., and George Douglas Sherley, have died intestate. George Douglas Sherley left no children, and his mother is his only heir. John C. Sherley left surviving him two children who are appellants herein. Thomas H. Sherley left several children, one of whom is an appellant herein, and the others, although taking no part in the litigation, are made appellees herein. In the year 1880, for a consideration of $15,000, John C., Thomas H., and George Douglas Sherley, joining in a deed of conveyance, sold and conveyed the real estate men- tioned in the two quoted clauses of the will of Zachary M. Sherley to the widow, Susan M. Sherley, who already was the owner of a life estate under the will. The deed contained a general warranty of title, and was Appeal from Circuit Court, Jefferson Coun- duly accepted by the grantee, who has been ty, Chancery Branch, First Division. holding and claiming ownership of the land For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (232 S.W.) [1] Hence it is apparent that the determining question is whether the sons took an interest in the property under the will of their father, the title to which they could sell and transfer, and their heirs be bound by their action. It must be conceded that, if the interests in remainder under the will vested in the sons at the death of the father, and they sold and conveyed same, their heirs are without any right to the property, unless there was attached to the devise a subsequent condition that, if they did not survive the termination of the life estate, such fact worked a defeasance of their estates, since a vested remainder is an estate which is susceptible of a sale and transfer of the title, and will pass by sale, devise, or inheritance. If there is by reason of the will and the deed since that thereby and now have no interest in the time. The appellants, as heirs at law of property whatsoever. John C. Sherley and Thomas H. Sherley, respectively, are claiming an interest in the property, and to enforce their alleged respective rights instituted this action. Pending the action the appellee Susan M. Sherley conveyed the land to C. C. Hieatt, and he to the Consolidated Realty Company, and the two latter were also made parties to the action, and are also appellees here. Susan M. Sherley, Hieatt, and the Consolidated Realty Company interposed a general demurrer to the petitions of the appellants. A copy of the will of Zachary M. Sherley and the deed of conveyance from the three remaindermen to Susan M. Sherley were filed with and made a part of the petitions. The court sustained the demurrer, and, the appellants declining to further plead, their actions were dismiss- no defeasance provided for in the conditions ed, and they have appealed. of a vested remainder, or if a defeasance is provided for but the condition does not happen which will create the defeasance, a sale and conveyance by the remaindermen transmits the title to the property, although the time is deferred at which the owner of the remainder can enjoy it. [2-4] 1. Preliminary, however, to a discussion of the real question which determines the rights of the parties, it must be conceded that, the testator having unequivocally direct The appellants contend that the judgment was erroneous, because the interests which the sons took under the will of the testator were not present, but were interests contingent upon the survival of the sons until the termination of the life estate, and did not vest until that time, and, not having survived until that time, the event never occurred upon which the interests vested and became transmissible by the sons, or, if the interests which the sons took under the willed a sale of the property and a division of became vested upon the death of the testator, the failure to survive until the termination of the life estate effected a defeasance and defeated their estates, and in the first instance a conveyance by them was a nullity, since they never had a right to the remainder in enjoyment, and in the second instance, though having a vested right, it was defeated by the subsequent condition of their deaths, and the property in remainder descended to the heirs of the testator as undevised property. A second condition is that the title to the remainder interests in the property was in the executor, with a direction to sell, or was in the heirs of testator, who were in existence at the termination of the life estate, subject to the power of sale by the executor, and hence the sons were without power to effect a sale of the property, or to reconvert it from personalty into real property, and the deed of 1880 was therefore a mere nullity. Upon the other hand, it is contended by the appellees that the interests of the sons under the will were present interests and vested in them at the death of the testator, and, although the remainder interests were bequests of personalty, they had the power and did by their deed of 1880 reconvert the remain-alty took place at the death of the testator, at der interests from personalty into realty, and by the same deed passed the title to the vendee, and, though it should be held that their deed did not reconvert the property into realty, it had the effect of transferring their beneficial interests to the grantee, and in any view of the matter their heirs were bound the proceeds between his sons at the termination of the life estate of the widow, there can be no doubt that the equitable fiction will have to be indulged that the testator, by the terms of his will, converted the remainder interest in the property from realty into personalty, and, so far as is necessary for the purpose of carrying out the provisions of the will, that portion of the property, at least, will have to be treated as personalty, and the bequests made to the three sons will have to be considered legacies in money. Hocker v. Gentry, 3 Metc. 463; Gedges v. Western Baptist Theo. Ins., 13 B. Mon, 530; Porter v. Porter, 135 Ky. 813, 123 S. W. 302; Christler's Ex'r v. Meddis' Adm'r, 6 B. Mon. 37; Burnsides' Adm'r v. Wall, 9 B. Mon. 322; Cropper v. Gaar's Ex'r, 151 Ky. 376, 151 S. W. 913, L. R. A. 1916B, 1139; Bowling's Heirs v. Dobyns, 5 Dana, 434; Holeman v. Landes, 2 Bush, 158; Fields' Heirs v. Hallowell & Co., 12 B. Mon. 517; Arnold's Ex'r v. Arnold's Heirs, 11 B. Mon. 81. While there is some diversity of opinion the principle as gathered from the above authorities may be conceded to be that the conversion of the remainder interests from realty into person which time the will took effect upon the property. Whether the property, however, after the death of the testator, is to be considered as realty or personalty, does not, except in slight measure, affect the main question for decision, since a life estate or an estate for a term of years to one and an estate in re The fact that the period of enjoyment is deferred to a future time does not prevent the remainder from vesting, if there exists a designated person who has the right to immediately enter into the possession if the intervening estate should terminate. In the instant case a life estate is devised to the wife of the testator, and the remainder is de mainder to another may be created in person- | that enjoyment, which marks the distinction beal as well as in real property, and by analogy tween a vested and contingent remainder." such estates in personal property are gov- Kent, vol. 4, 206. erned, in the main, by the same general principles as such estates in realty are, although assignments of certain contingent interests in personalty will not be upheld, except in equity. Stallcup, etc.,. v. Cronley's Trustee, etc., 117 Ky. 547, 78 S. W. 441, 25 Ky. Law Rep. 1675; Keen v. Macey, 3 Bibb, 39; 23 R. C. L. 491; 17 R. C. L. 617; Maulding v. Scott, 13 Ark. 88, 56 Am. Dec. 298; Cruse v. McKee, 2 Head (Tenn.) 1, 73 Am. Dec. 186; Langwor-vised to the three sons of testator, designatthy v. Chadwick, 13 Conn. 42; Culbreth v. Smith, 69 Md. 450, 16 Atl. 112, 1 L. R. A. 538; Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23. Hence, although the will may not have had the effect of converting the life estate in the land into personalty, it being unnecessary to apply that fiction to the life estate, in order to carry out the purpose of the will as to it, and although unquestionably it did have the effect of converting the remainder interests into personalty, this difference in legal character between the property composing the life estate and that composing the remainder interests does not for any apparent reason present any obstacle to the existence of a life estate in the property with a remainder limited over to another. The life estate and the remainder were, in substance, created and existing in the same property, and the difference in the legal character of the property in the life estate and in the remainder is not a difference of substance, but one of mere fiction. [5-8] 2. Were the remainder interests in the property which were devised to the sons, respectively, vested or contingent remanders? A remainder interest in property is vested when there is a person in being who would have an immediate right to its enjoyment in possession, if the precedent estate should determine. The much-quoted rule, the origin of which is probably lost in antiquity, but was declared by Blackstone and has been adhered to by the text-writers and courts, and which is appealed to as denoting the line of distinction between a vested and contingent remainder, is: ing each of them by name. There is no obstacle appearing in the devise, nor is there any reason suggested which would have incapacitated the remaindermen at any time after the testator's death from entering into the enjoyment of the estate in remainder, if the life estate had terminated, and their right to have done so is without doubt and certain. The time of the payment of the legacies was made to depend upon the time of the death of the life tenant, which was an event certain to occur. The deferring of the time for the payment to the sons of the proceeds of the sale of the property did not arise from their incapacity to take, but the payment of the bequests was deferred simply for the convenience of the estate and the benefit of the life tenant, and in such case the remainder vests at once in the remaindermen, where they are designated with certainty. Wedekind v. Hallenberg, 88 Ky. 114, 10 S. W. 368, 10 Ky. Law Rep. 696; Williams v. Wil liams, 91 Ky. 547, 16 S. W. 361, 13 Ky. Law Rep. 293; Kamp's Ex'r v. Hallenberg, 8 Ky. Law Rep. 529. When a remainder interest created by a will vests must, of course, depend upon the intention of the testator, ascertained from the consideration of the entire will, the language used, and the adjudged legal effect of the use of similar language. In the instant case the language used in making the devise is a direct and unqualified gift, and the only ground upon which it could be contended that the remainder did not vest upon the death of the testator is that the period for the beginning of the enjoyment of the legacies to the sons is fixed by the testator in "The present capacity of taking effect in pos- the following language: "Upon the death of session, if the possession were to become va- my wife." This expression is equivalent to cant, and not the certainty that the possession "when my wife dies" or "at the death of my will become vacant, before the estate limited in wife," and such similar expressions, which remainder determines." Bank of Taylorsville in a will, in the absence of anything showing v. Vandyke, 159 Ky. 201, 166 S. W. 1024; Jail- a contrary intention, have been construed as ette v. Bell, 110 S. W. 298, 33 Ky. Law Rep. merely deferring the time for enjoyment in 159; Hackney v. Tucker, 121 S. W. 417; Wil-possession of the property composing the reliamson v. Williamson, 18 B. Mon. 329; Weil mainder, and not to defer the vesting of the v. King, 104 S. W. 380; Walters v. Crutcher, remainder or creating a condition which, up15 B. Mon. 2; Moore's Adm'r v. Sleet, 113 Ky. 600, 68 S. W. 642, 24 Ky. Law Rep. 426; Wil- on its happening, would divest the remainderliamson v. Maynard, 162 Ky. 726, 173 S. W. 122. man of title. In other words, the gift is made instanter, but the enjoyment of it is deferred until a future time. Williamson v. Williamson, 18 B. Mon. 329; Danforth v. Talbot's Adm'r, 7 B. Mon. 628; Grigsby v. Breck Chancellor Kent said: "It is not the uncertainty of enjoyment in the future, but the uncertainty of the right to (232 S.W.) inridge, 12 B. Mon. 632; Briscoe, etc., v. context of the devise were similar in effect to [9] 3. The contention that, although the remainder interests were vested in the sons at the death of the testator, their deaths before that of the life tenant, or before the period at which the property was to be sold and the proceeds divided between them, worked a defeat of their estates, we do not think is tenable. The soundness of the doctrine that, when the person to whom a remainder, after a life estate or an estate for a term of years, is limited is ascertained and the event upon which it is to take effect in enjoyment is certain to occur, and is thus a vested remainder, it may be defeated by the death of the remainderman before the termination of the life estate, is not disputed, where the terms of the devise provide for such an effect from the death of the remainderman, prior to the termination of the particular estate. It will be observed that in the will under consideration there is no term or condition of the devise which would effect a defeasance of the vested estate in the remainder by the death of the remainderman at any time, nor is there anything in the language of the devise or its context from which it could be inferred that the testator intended at the death of his sons prior to the termination of the life estate would work a defeasance of the interests devised to them. As before said, no disposition is provided for the remainder interests in the property, except its sale and the payment of the proceeds to the remaindermen. The remainder is simply devised to the sons by name, and no intimation is made of any condition arising upon which the estate devised to them. would be defeated. Many wills containing devises of precedent particular estates with remainders limited after them have been before this court for construction, and our attention has been called to none in which the language and [10-13] 4. Having concluded that the sons under the will were the owners of a feesimple title to the remainder interests in the property, the right and title thereto having vested in them upon the death of the testator, what effect did their deed to the life tenant in 1880 have? Where there has been an equitable conversion of realty into personalty, by an explicit direction in his will by a testator for the sale of lands, and the payment of the proceeds by the executor to certain legatees, the beneficiaries may elect to treat the proceeds which they are to receive from a sale of the lands as real property, and thereby convert the property back into realty, and take the land in lieu of the proceeds, provided always that such action does not result in any damage to the owner of the particular estate, and this doctrine is as well established as the one upon which it was originally converted from realty into personalty. To accomplish this, it is necessary that all the persons who are entitled to receive the proceeds of a sale of the lands should be sui juris, able to make an election, and should all concur in some affirmative act denoting the fact that the election has been made. Swan, etc., v. Goodwin, etc., 2. Duv. 298; Rawlings' Ex'r v. Landes, 2 Bush, 158; 13 C. J. 885 to 891; Bank of Ukiah v. Rice, 143 Cal. 265, 76 Pac. 1020, 101 Am. St. Rep. 118; . (192 Ky. 3) FAUST v. LOUISVILLE TRUST CO. (Court of Appeals of Kentucky. June 10, 1921.) 1. Appeal and error 38-Supreme Court held to have jurisdiction in suit involving rights under tax lien, though amount involv-. ed less than $200. Ky. St. § 950, relating to appellate jurisdiction of the Supreme Court as determined by the amount in controversy, expressly provides that an appeal may be taken as a matter of right in cases in which the right to enforce a statutory lien is involved, and hence, though the amount involved is less than $200, the court has jurisdiction of an appeal in a suit involving a question of priority between a court has jurisdiction of an appeal in a suit mortgage and the lien of a purchaser at a tax sale, who has been subrogated to the rights and lien of a city given by section 3006 to secure payment of city taxes. 2. Judgment ~59(1)— 90-Motions Agreed judgment not set aside, in absence of fraud or mistake. Generally speaking, in absence of fraud or mutual mistake, the court will not set aside an agreed order or judgment. 3. Appeal and error 125-Judgment held not an agreed judgment, from which there can be no appeal. Smith v. Starr, 3 Whart. (Pa) 62, 31 Am. Dec. 498; 6 R. C. L. 1090. This doctrine is founded upon the principle that the equitable conversion from realty into personalty was for the sole benefit of the persons to whom the proceeds are to be paid, and, being under no disabilities and able to contract, should be entitled to have a decision in regard to their own property. Where a testator directs lands to be sold by the executor, and the proceeds paid to certain devisees, and the beneficiaries have sufficiently manifested their election to keep the land instead of its proceeds, the power of the executor to sell it is extinguished, and this would seem to be so whether the executor is would seem to be so whether the executor is given a mere power of sale, without the title being vested in him, or whether the title is by implication conferred upon him, with no other trust than to sell the land and to pay over the proceeds to the beneficiaries. What effect conveying the entire legal title to the trustee, and with other conditions incorporated into a will, controlling the rights of the beneficiaries, would have, is not necessary to be considered here, as the executor is invested with no other trust, except the sale of the property and a division of the proceeds, and this is the very thing which the beneficiaries, by an election to retain the land, may extinguish. It is insisted in the instant case that, although the remainderman were sui juris, and sold their interests in the property for a valuable consideration, and all joined in electing to retain the land in lieu of the pro-vised, it is adjudged," etc., is the judgment of ceeds, the election was invalid, because made before the time of the distribution of the proceeds of a sale of the land fixed by the will. It is true that it has been held by some courts in certain cases that an election to convert the personalty into realty by the equitable fiction of having elected to retain the land could not be made until the time for the sale of the land had arrived, while other courts have held to the contrary. In the instant case, however, the beneficiaries being sui juris, with power to contract about their own, and no other having any interest in their actions, and no harm resulting to the particular estate, it would seem that the sounder reason is with the courts holding that the owner of a vested estate in remainder may make an election to convert what is personalty, by reason of a fiction, into realty, and thereby remove the fiction at any time, and when they have made such an election by executing a deed by which their interests in the land, which consists of personalty by the fiction, are converted into realty, this has the effect of also passing their title to the land to the vendee, and such action on their part would necessarily bind their heirs, and would extinguish the power of the executor to sell the land. The judgment is therefore aflirmed. A judgment reciting that, "this action having been submitted, on the pleadings and exhibits filed, and the defendants being properly summoned and the court being sufficiently adthe court, following a submission on the merits, and not an agreed judgment, from which there can be no appeal, though the O. K. of counsel for both parties appears thereon; plaintiff being adjudged a second lien on property, as to which he asserted in his pleadings a tax lien prior to all others under Ky. St. § 3006. 4. Municipal corporations 980 (9)-Purchaser at tax sale held entitled to lien for amount expended superior to mortgage. Under Ky. St. § 3006, providing that the lien for city taxes shall be superior to homestead right and to all incumbrances except state taxes, etc., a purchaser at a sale for city taxes against property not redeemed as permitted by section 4154, is entitled to the statutory lien for the amount expended by him superior to the lien a mortgage on the property sold. Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division. Suit by the Louisville Trust Company against Johannah Kelley and John Faust. From a judgment for plaintiff, defendant Faust appeals. Reversed. Lawrence S. Poston, of Louisville, for appellant. R. A. McDowell, of Louisville, for appellee. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |