the sacrifice of her entire estate, that a por NUNNELLY'S GUARDIAN et al. v. NUN tion of the lands, which had been devised to NELLY et al. (Court of Appeals of Kentucky. March 22, 1918.) 1. WILLS ~634(8)—CONSTRUCTION. A will giving a life estate with remainder to children, but in event of death leaving no children, property to go to others, held to give an uninheritable contingent estate to the chil dren defeasible at their death. her under the wills, above named, and in which her children owned a remainder interest, should be sold to satisfy the mortgage debt created upon her interest in the property. She also claims to be the owner by inheritance of the remainder interests in the lands, which she alleges were owned by her deceased children, as each of them died, 2. WILLS 628-VESTED AND CONTINGENT never having been married and never having REMAINDERS. A vested remainder is an inheritable es tate, but a contingent remainder is lost by the failure of the contingency to occur. had any children. For the purpose of determining what interest, if any, her deceased children, as well as those living, have in 3. PARENT AND CHILD ~3(2)—MAINTENANCE the lands sought to be sold, a construction AND EDUCATION-LAND. A parent cannot subject interest of infants in land to sale to provide funds for payment of debts previously incurred for their maintenance and education, where no application had been made to a chancery court for the purpose. 4. GUARDIAN AND WARD 75 MAINTENANCE OF WARD-REAL ESTATE. Under Ky. St. §§ 2034, 2039, relating to maintenance of ward, a guardian cannot subject the real estate of his ward for his maintenance or education without first having made application to a court of chancery, and received the chancellor's directions so to do. Appeal from Circuit Court, Fayette County. Action by S. P. Nunnelly, as guardian of Coleman Nunnelly and others, against Coleman D. Nunnelly and others. Judgment for defendants, and plaintiffs appeal. Affirmed. See, also, 173 Ky. 372, 191 S. W. 85. W. C. G. Hobbs, of Lexington, for appellants. J. T. Farmer, of Lexington, for appellees. HURT, J. This action was instituted by S. P. Nunnelly, as guardian of Coleman Nunnelly, Clifton Nunnelly, and Nancy D. Nunnelly, Nannie D. Nunnelly, the wife of S. P. Nunnelly, and James R. Nunnelly, against Coleman D. Clifton, and Nancy D. Nunnelly, who are infants. S. P. Nunnelly and Nannie D. Nunnelly are the parents of the plaintiff James R. Nunnelly and of the infant defendants. In addition to the infant defendants and the plaintiff James R. Nunnelly, Nannie D. Nunnelly had seven other children, who are now dead. Nannie D. Nunnelly is the owner of a life estate in certain lands, which were devised to her by her father, James A. Darnaby, and by her aunt, Martha Weathers. It seems that heretofore, Nannie D. Nunnelly and her husband, S. P. Nunnelly, executed a mortgage upon the entire interest of Nannie D. Nunnelly in these lands, and that one or more of her adult children joined in this mortgage. The petition alleges that the mortgage, being about to become due, and the debt which the mortgage secures, was created by Nannie D. Nunnelly and her husband, S. P. Nunnelly, in maintaining and educating their children; that it was necessary, in order to prevent of the wills of James A. Darnaby and Martha Weathers was sought. The contention of appellants is that the children of Nannie D. Nunnelly took, under the wills of Darnaby and Martha Weathers, a vested remainder interest in the lands devised and here sought to be sold, and that upon the death of any of them without other heirs, their interests in same were inherited by their father and mother, while the contention of the guardian ad litem for the infants is that the children of Nannie D. Nunnelly took a defeasible fee in the lands subject to be defeated by their deaths prior to the death of their mother, and the latter view was accepted by the court, which also sustained a demurrer to the petition and adjudged that it be dismissed, because the infant children of Nannie D. Nunnelly did not have any interest in the land, which was a subject of sale under a judgment of the court, for the debt sued upon, and from this judgment Nannie D. Nunnelly and her husband, in his own right and as guardian for his infant children, and the adult child, who joined as a plaintiff in the petitions, have appealed to this court. [1] The clause of the will of James A. Darnaby, under which the lands are held, is as follows: "5th. It is my will and desire that my executrix keep all of my land and manage it as she may see proper or best, and for her to have a good living out of the income during her life, and in the event of her death, then it is my will and desire, that my land be divided equally between my two daughters, Mattie Weathers and Nannie Nunnelly to have and to hold during their natural lives, and in the event of the death of my daughter, Mattic Weathers, her share of my land shall go to her child or children, and in the event of the death of my daughter, Nannie Nunnelly, then her share of my land shall go to her child or children, and in the event of the death of either of my two daughters above named leaving no child or children, then their share of my land shall go to the other daughter and to her child or children at her death.' It is very clear that by this clause of his will, the testator intended to create in his wife an estate for her life, and at her death a life estate should be created in Nannie Nunnelly in one-half of the land, and at her death that it should pass, in fee to her children, if she had any such living at that time, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and if she left no child or children surviving v. Froman, 175 Ky. 540, 194 S. W. 809; Jailher, then the portion of the land devised to Nannie Nunnelly for life should go, in fee, to Mattie Weathers, if living, and, if not, to her children. The clauses of the will of Martha Weathers, under which a portion of the lands in controversy is held, are as follows: The sixth clause of the will is as follows: "Should Mattie Weathers die without children, it is my will that her entire interest devised to her by this will shall pass to Nannie, but should she be deceased leaving children, then I want the whole estate to pass to them." From the above provisions, as well as his entire will, it is clear, the testator intended to devise the lands to his niece, Nannie Nunnelly for her life, and at her death it should go, in fee, to her children, if she left any surviving her at that time, and, if not, the lands should pass in fee to such children of Mattie Weathers as should then be surviving. Nannie Nunnelly having outlived her mother, Susan Darnaby, there is no question with regard to her vested right to a life estate in the lands devised to her under the will of James A. Darnaby. It is equally clear that the interests of the children of Nannie Nunnelly, under the provisions of both the will of James A. Darnaby and that of Martha Weathers, is neither a vested remainder nor a defeasible fee, as no interest vested in them under either will, except in the event they should be surviving at the time of the death of Nannie Nunnelly. The interest acquired by them under these wills was that of a contingent remainder. As to whether the children of Nannie Nunnelly will ever have any interests in the lands is contingent upon their being alive at the death of their mother. As to whether they will or will not survive their mother is dubious and uncertain, and the further uncertainty exists as to whether one or more or neither of them may survive their mother. The time is fixed in the will at which the remainder interest may vest in them, and when they shall become capable of entering into possession at the death of Nannie Nunnelly. Froman 201 S.W.-62 ette v. Bell, 110 S. W. 298, 33 Ky. Law Rep. 159; Whallen v. Kellner, 104 S. W. 1018, 31 Ky. Law Rep. 1285; Augustus v. Seabolt, 3 Metc. 156; Williamson v. Maynard, 162 Ky. 726, 173 S. W. 122; Williamson v. Williamson, 18 B. Mon. 368. [2] A vested remainder is an inheritable estate, but a contingent remainder is lost by the failure of the contingency to occur upon which the estate depends. Hence the children of Nannie Nunnelly, who have heretofore died, the contingency never having occurred which was necessary, under the will, to give them an interest in the land, there was nothing which their parents could inherit from them, as the entire estate must pass to the surviving children of Nannie D. Nunnelly, if any of them survive at the termination of the particular estate, which is the life estate of their mother. If, at the death of Nannie D. Nunnelly she have no children which survive her, the lands then pass under the will to the children of Mattie Weathers. [3] The indebtedness for which the interests of the infants in the real estate is sought to be sold is alleged to be indebtedness incurred by their parents in their maintenance and education. No application was made to any chancery court for the purpose of subjecting the interests of the infants in the lands to a sale for the purpose of providing funds for their maintenance and education, and it is now sought to sell their interests, whatever they may be, in the lands in order to satisfy debts, which the parents have heretofore incurred. It has been several times held by this court that the real estate of an infant cannot be subjected to the payment of a claim for his education or maintenance, nor can the proceeds be so applied if the land is sold. Cox v. Storts, 14 Bush, 502; Dixon v. Hosick, 101 Ky. 231, 41 S. W. 282, 19 Ky. Law Rep. 387; Fidelity Trust Co. v. Butler, 91 S. W. 676, 28 Ky. Law Rep. 1268; Kentucky Statutes, §§ 2034, 2039. [4] From two statutes cited, it is apparent that a guardian cannot subject the real estate of his ward for his maintenance or education without first having made application to a court of chancery and received the chancellor's directions so to do. The judgment of the court below, although based upon a different reason from that assigned herein, but the result being the same, is therefore affirmed. BENTLEY v. STEWART et al. (Court of Appeals of Kentucky. March 19, 1918.) 1. EXECUTORS AND ADMINISTRATORS 349(2) PROCESS SUMPTIONS. 349(2) In support of a judgment under which a sale was made and title passed, it will be presumed that a recital in the record of due service upon an infant was true, and that the service was duly completed by service of a copy on the infant's mother and custodian. 3. INFANTS 78(6)—GUARDIANS AD LITEMNECESSITY OF APPOINTMENT. Where all infants interested save one were personally served, and thereafter a duly appointed warning order attorney filed his report for such infant, it was not necessary that a guardian ad litem be appointed for such infant who was a nonresident. 4. JUDGMENT 489-COLLATERAL ATTACKPRESUMPTIONS. In a collateral attack upon a judgment, in a cause which had been submitted to a special judge, the record of which did not show his qualification, it would be presumed that the judgment was rendered by the regular judge. 5. JUDGMENT 501-COLLATERAL ATTACKPOWERS OF JUDGE. In collateral attack on a judgment, rendered by a special judge whose authority did not affirmatively appear from the record, his acts were nevertheless binding and valid, since he was not a tortious usurper, but acted under color of authority by agreement of parties. 6. EXECUTORS AND ADMINISTRATORS COLLATERAL ATTACK FORM CIENCY. 349(2) SUFFI In an action for settlement of a decedent's estate, where judgment ordering the sale of land was entered when one of the infant parties had not been served and sale was had, and an order made setting aside the sale for lack of service, the court's subsequent order to enforce its prior judgment was sufficient against collateral attack without ordering the sale and describing the land and the terms. 7. EXECUTORS AND ADMINISTRATORS 349(2) -LAND-AMOUNT REQUIRED TO BE SOLD. In suit for settlement of a decedent's estate, where land was ordered to be sold for the amount necessary to pay debts, and the sale was set aside, and after a year and nine months had elapsed a new sale was ordered at a larger sum, which was accounted for by interest and cost allowances, the sale was not void because more land was sold than was necessary to pay the debts and costs. 8. EXECUTORS AND ADMINISTRATORS -EFFECT-Mortgage. 349(1) Since the court has no authority to make a mortgage contract for the parties, a judgment and conveyance thereunder in a suit for settlement of a decedent's estate cannot be held to be a mortgage, and such conveyance divested the parties of all title and interest in the land, and CLARKE, J. Reuben Stewart died intestate, in the early part of 1893, the owner of four tracts of land in Pike county, aggregating 170 acres. He left two sets of children, five in each set. This action was begun by the older set, who alleged that they were the only heirs of Reuben Stewart, and as such were the owners, and entitled to the possession, of the four tracts of land left by their father; that the defendant, John A. Bentley, was in possession thereof, claiming ownership under a deed made to his father, James G. Bentley, as trustee, in an old suit of Bentley against Stewart, in which a settlement of the estate of Reuben Stewart was attempted, but that the judgment, sale, and conveyance therein were void. The entire record in the old suit was made a part of the petition. [1] Defendant filed a demurrer to the petition, claiming that, as this is a collateral attack upon the judgment in the former case, a cause of action was not stated, unless it affirmatively appeared from the old record that the judgment, sale, and conveyance therein were void. This is the law, and the whole matter in so far as the interests of the older set of children were concerned could, and should, have been determined upon the demurrer. Black on Judgments, vol. 1, §§ 252 and 271; Van Fleet on Collateral Attack, § 855; Duff v. Hagins, 146 Ky. 792, 143 S. W. 378; Harrod v. Harrod, 167 Ky. 308, 180 S. W. 797; Wallace v. Lackey, 173 Ky. 140, 190 S. W. 709. In the recent case of Ratliff v. Childers, 178 Ky. 102, 198 S. W. 718, this whole question was reviewed, authorities cited, and the rule stated thus: "Unless the record of the case in which the judgment attacked was rendered affirmatively shows that the court was without jurisdiction, or for some other cause the judgment is void, it will be upheld against a collateral attack. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes In such case no evidence is admissible except that which is furnished by the record of the action wherein the judgment was rendered." set of children, are void, are as follows: (1) That Henderson Stewart and Thomas Stewart were not before the court; (2) that R. T. Our inquiry to ascertain whether or not Burns, who entered the judgment, was actthe judgment attacked is void will therefore ing as special judge by consent, and that, as be confined to the record in the whole case. Henderson Stewart, Thomas Stewart, and Only the older set of children of Reuben Isabella Wallace were then infants, they Stewart were parties to or can be affected by could neither consent to his acting in that cathat action, and of them only Thomas Stew-pacity nor waive his taking the oath prescribart, then about 18 years of age, was noted by law; (3) that all of the land was sold brought before the court by personal service, as a whole for more than the debts, costs, and although the service upon Henderson Stew- allowances; (4) that the sale to all the credart is questioned, as will hereafter appear. itors and conveyance to one of them as trusAfter the suit had been referred to the mastee for all was not a sale, and did not divest ter and he had reported the proven debts the heirs of Reuben Stewart of their interagainst the estate of Reuben Stewart ests only so far as was necessary to pay the amounting to $238.76, that he left no personal debts, and constituted the grantee the trus estate, and it would be necessary to sell a suf- tee of the heirs to hold and manage the propficiency of the land to pay the debts, and erty for the benefit of the creditors only unthis report had been confirmed, a sale of a til their claims were satisfied out of the sufficiency of the land to pay the debts, costs, rents and profits accruing therefrom. and allowances was ordered. The land was 1. The first reason assigned for the invafirst sold by the master to the plaintiff in lidity of the judgment is that two of the inthat action, James G. Bentley, for $163. fant children of Reuben Stewart were not That sale was set aside because of inadequa- properly before the court. Summons was cy of price, and the land resold to Parsons issued against the five children by the first and York, two creditors, for $320.50, which, marriage, only one of whom was at the time as stated in the master's report of the sale, of age, the youngest child being under 14. was the amount of money ordered to be rais-The summons is in the record, and is ined. This sale was also set aside at the instance of the purchasers, because Thomas Stewart had never been brought before the court. He, being a nonresident of the state, was summoned by warning order, and the report of the warning order attorney, who was regularly appointed, was filed, and thereafter, on March 21, 1896, this order was entered: dorsed: "Executed upon all except Thomas Stewart, February 23, 1894. R. Hatcher, S. P. C., by J. G. Bentley, D. S." [2] It is insisted by counsel for appellees that, since the return of the officer does not show that the summons was served upon Henderson Stewart, an infant under 14 years of age and having no guardian, by the de "Submitted to R. T. Burns as special judge livery of a copy to his mother and custodian, herein by consent; oath waived." there was no service upon the infant. This Following this order is another which, aft- position is not correct, as it will be presumer reciting that the sale under the former ed that the officer did his duty and served the judgment entered at the March term, 1894, summons upon the infant as the law prehad been set aside because Thomas Stewart scribes by delivering a copy thereof to his was not before the court, and that he sub-mother and custodian. Bailey v. Fanning, 14 sequently had been constructively served, is S. W. 908, 12 Ky. Law Rep. 644; Bridges in this language: v. Ridgley, 2 Litt. 396. The case of Beverly v. Perkins, 1 Duv. 252, is not in point, because the return in that case showed affirmatively that the summons had not been served upon the infant in the way provided by the Code, which conclusively refuted the presumption it had been legally done. In the other case relied upon by appellees, Wornack v. Loar, 11 S. W. 438, 11 Ky. Law Rep. 6, it is only decided a judgment against an infant under 14 years of age is void when no sum "It is now adjudged by the court that the master commissioner of this court execute fully the judgment of this court at its March term, 1894, directing the sale of the land, and that he report to the next term of this court." The master commissioner, pursuant to this order, again advertised and sold the land, when it was brought by some for all of the creditors for $369.97. This sale was confirmed, and the master commissioner was directed to convey the land to W. M. Conley as trustee for all the creditors of Reuben Stew-mons is served on the father, guardian, art. After the deed had been made to Conley the case was dropped from the docket. About a year thereafter, Conley having died, the case was redocketed by consent, and the land conveyed to James G. Bentley as trustee for the creditors. The grounds upon which it is asserted the judgment, and the sale and conveyance of the mother, or custodian, and the question of such or any service having been made was not raised. As all of the defendants in the old suit were personally served with summons, except Thomas Stewart, and as he was constructively summoned November 22, 1895, it will be seen that all of these parties were and order of sale of March 21, 1896, were entered. [3] A guardian ad litem was appointed for all the infant defendants, and he filed his report for them, which, however, was without effect so far as Thomas Stewart was concerned, as he was not then before the court and was a nonresident. The warning order attorney filed his report before the judgment was entered, and it was not necessary that a guardian ad litem be appointed for the nonresident infant. Powell v. Baer, 143 Ky. 282, 136 S. W. 629. [4, 5] 2. Although it appears that the cause was submitted by consent on March 21, 1896, to R. T. Burns, as special judge, it does not appear that the regular judge was absent or disqualified to act, or that the judgment was rendered by R. T. Burns as special judge, or that he ever took any action whatever with reference to the suit. It would seem, therefore, that under the authorities heretofore cited the presumption must be indulged upon a collateral attack upon a judgment that it was rendered by the regular judge. But, if this were not true, and it be assumed that Burns consented to act as special judge, and as such rendered the judgment, he was nevertheless a de facto officer, and his acts as such are not void, and cannot be attacked collaterally. The court unquestionably had jurisdiction of the subject-matter and of the parties, and R. T. Burns, if he rendered the judgment, was not a tortious usurper, but was in possession of the office of special judge and acting under color of authority and in the belief that his selection was legal; and his acts are therefore valid and binding on col lateral attack. In Coquillard Wagon Works v. Melton, 137 Ky. 189, 125 S. W. 291, M. C. Givins acted as special judge of the Henderson county court by agreement of the parties; the regular judge being disqualified because he was a party to the action. Under such circumstances the law then provided that the nearest magistrate should preside as county judge, and the selection of Judge Givins, who was not a magistrate, was not authorized and was illegal; yet this court held that he was a de facto officer, and that his acts could not be collaterally attacked, the court saying: "It may be conceded that his selection was irregular, and was an error available to any party by objection, and upon appeal, or perhaps by prohibition. The fact remains, however, that Judge Givins assumed to act as judge of the court under color of authority, and in the belief that his selection was legal. He was not a tortious usurper. He was the de facto judge of the court, inasmuch as he was actually in possession of the office, exercising its functions in that cause, and acting under the color of title. Stokes v. Kirkpatrick, 1 Metc. 138; Rice v. Commonwealth, 3 Bush, 14; Chambers v. Adair, 110 Ky. 942, 62 S. W. 1128, 23 Ky. Law Rep. 373; Elliott v. Burke, 113 Ky. 479, 68 S. W. 445, 24 Ky. Law Rep. 292. * * "If the appointing power was validly exercised, the officer would be the lawful incumbent. The essential to the creation of an officer de facto is that his incumbency should not be legal, but that it should be exercised by virtue of some election or appointment attempted as of legal right, but invalid for want of power in the appointing body, or because of the defect in the election. Here it was believed by the acting parties, their counsel, the clerk of the court, and the judge selected, that the parties could, by their agreement, invest him with the prerogative of the office. He was, under that belief, appointed, accepted the appointment in good faith. and acted as judge under it. He had every essential feature of an officer de facto. The judgment and other proceedings had in the court of which he so acted as judge are binding in a collateral attack. Freeman on Judgments, § 148." See, also, 23 Cyc. pp. 616 to 621, inclusive; 15 R. C. L. p. 517. It therefore results that the judgment is not void because entered by the de facto special judge, and that upon collateral attack it is binding upon all parties even though some of them were infants. Myers v. Pedigo, 72 S. W. 734, 24 Ky. Law Rep. 1923; Carney et al. v. Yocum's Heirs et al., 176 Ky. 173, 195 S. W. 482. [6] 3. It is next insisted that the judgment of March 21, 1896, under which the land was sold is void, because it only directed the this court at its March term, 1894, directing master to "execute fully the judgment of the sale of the land," instead of ordering the sale of the land, describing it, and prescribing the terms of sale, as was done in the original judgment. This objection is the former judgment, ordering the sale of urged evidently upon the mistaken idea that the land, had been set aside, whereas it was only the sale thereunder that had been set aside. That judgment was valid and binding upon all of the parties except Thomas Stewart, who was not before the court when it was entered; and as to them at least the order to the master to re-execute the judgment was all that was necessary; and as to Thomas Stewart, who was constructively before the court when the judgment and order of sale was entered on March 21, 1896, the objection is to the form of the judgment only, and not to the jurisdiction of the court, and even if the judgment as to him was erroneous in form, it is not subject to collateral attack. [7] 4. The contention that more land than was necessary was sold to pay the debts, costs, and allowances does not affirmatively appear from the record, although at the last sale to which the objection is directed the land was sold for $369.97, whereas at the next preceding sale it was sold for $320.50, which sum, the record discloses, was the amount necessary at that time to be raised in order to pay the debts, costs, and allowances. A year and nine months had elapsed between the two sales, during which time interest had accumulated on the $320.50 in the sum of $33.65, which accounts for all the difference between the two sales except $15. |