CHAPTER 381 Title to Property and Restrictions on Use, Ownership and Alienation

381.010. Commonwealth vested with ultimate property to lands.

The Commonwealth of Kentucky is deemed to have possessed the original, and has the ultimate property in and to all lands within her boundaries.

History. 2337.

NOTES TO DECISIONS

1.Continuation of Title and Ownership.

Title and ownership continues in the Commonwealth until it disposes of the land by patent, or loses it by adverse possession. Whitley County Land Co. v. Powers's Heirs, 146 Ky. 801 , 144 S.W. 2, 1912 Ky. LEXIS 171 ( Ky. 1912 ).

2.Escheat.

Board of education had the power to institute a suit in “the name of the Commonwealth” for escheat of land held by alien perhaps because under this section the Commonwealth of Kentucky is deemed to have possessed the original and has the ultimate property in and to all the lands within her boundaries. Commonwealth ex rel. Attorney Gen. v. Tamer, 293 Ky. 357 , 169 S.W.2d 19, 1943 Ky. LEXIS 626 ( Ky. 1943 ).

Cited:

Nunn v. Wright, 303 Ky. 288 , 197 S.W.2d 439, 1946 Ky. LEXIS 839 ( Ky. 1946 ).

Research References and Practice Aids

Cross-References.

Apportionment of tax among owners of land assessed as tract, KRS 134.485 .

Appraisal of real estate to be sold under court order, redemption after sale, KRS 426.520 to 426.540 .

Attornment by tenant to stranger, conveyance without attornment, KRS 383.100 .

Banks, real estate title insurance companies, building and loan companies, railroads, power to hold land, KRS 277.060 , 287.100 , 304.22-030 .

Champertous contract concerning land forfeits interest therein, KRS 372.080 .

Corporations, power to hold land, escheat of land illegally held, KRS 271.145 .

Death of party to action after land sold under court order, KRS 426.550 .

Grant to United States of lands and rights to acquire, KRS ch. 3.

Inheritance tax, contingent estates, divestible estates, future interests, KRS 140.100 , 140.110 .

Inheritance tax, joint interest, KRS 140.050 .

Land regulations to prevent erosion, KRS 262.350 to 262.410 .

Lien for purchase money for real estate, how acquired, KRS 382.070 .

Lien on property on leased premises, removal of property, KRS 383.080 .

Liens of pending suits, attachments, executions, federal court judgments and internal revenue taxes, notice must be filed, KRS 382.440 to 382.470 .

Oil and gas leases, consolidation of where contingent future interests, or incompetents or minors, are involved, KRS 353.210 to 353.290 .

Oil and gas leases, execution by trustee where contingent future interests are involved, KRS 353.300 to 353.380 .

Penalty for selling lots in unapproved subdivision of first-class cities, KRS 100.093 , 100.990 .

State lands and buildings, KRS ch. 56.

Northern Kentucky Law Review.

Stephens, Historical and Practical Comments on Abstracting Land and Mineral Titles in Kentucky, 9 N. Ky. L. Rev. 445 (1982).

381.020. Titles allodial and subject to escheat — Right of eminent domain.

All land titles in this state are allodial, and, subject to escheat, the entire and absolute property in all land in this state is vested in the owners, according to the nature of their respective estates; except that the Commonwealth retains the right of eminent domain in and to all real estate.

History. 2338.

Research References and Practice Aids

Cross-References.

Escheat, property subject to, proceedings, KRS 393.020 , 393.150 , 393.160 .

Surveys of entries, when patent may issue, KRS 56.190 , 56.230 .

Unappropriated lands in county, Ohio River bed, KRS 56.210 , 56.220 .

Kentucky Law Journal.

Richardson, Acquisition of Right of Way for Highway Purposes in Kentucky — Right of Eminent Domain and Just Compensation, 36 Ky. L.J. 159 (1948).

381.030. Death of disseizor — Effect.

The death of a disseizor while seized of property shall not be such descent in law as to take away the right of entry of any person who has such right at the death of the disseizor, unless the disseizor has had fifteen (15) years’ peaceable possession after the disseizin was committed.

History. 2340.

NOTES TO DECISIONS

1.Application.

Where ownership of minerals by grantee was recognized by grantor-owner who remained in possession of the land until his death, the 15-year statute of limitations was not applicable and grantee could assert ownership 35 years after execution of the deed. Porter v. Justice, 242 S.W.2d 863, 1951 Ky. LEXIS 1081 ( Ky. 1951 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint to Establish Title by Adverse Possession, Form 303.01.

381.040. Estates may commence in future.

Any estate may be made to commence in the future by deed, in like manner as by will, and any estate which would be good as an executory devise or bequest shall be good if created by deed.

History. 2341.

NOTES TO DECISIONS

1.Conveyable Interests.

Whatever interest grantee had inherited could be conveyed under this section and was subject to attachment and execution for sale. Fischer v. Porter, 263 Ky. 372 , 92 S.W.2d 368, 1936 Ky. LEXIS 183 ( Ky. 1936 ).

It was unnecessary to decide whether estate remaining in grantor after execution of a deed to the board of education was a possibility of reverter or a reversion (contingent remainder), since under this section and KRS 381.210 , every conceivable interest in or claim to real estate, whether present, future, vested or contingent, may be disposed of by deed. Austin v. Calvert, 262 S.W.2d 825, 1953 Ky. LEXIS 1135 ( Ky. 1953 ). (See KRS 381.218 abolishing possibility of reverter and substituting right of entry and KRS 381.219 through 381.223 limiting right of entry.).

2.Construction of Deeds.

The rule that wills must be so construed, if possible, as to avoid imputing to testator an intention to die intestate as to part of his property has no application in the construction of deeds. Hopson's Trustee v. Hopson, 282 Ky. 181 , 138 S.W.2d 365, 1940 Ky. LEXIS 156 ( Ky. 1940 ).

3.Personal Property.

Language which would create a life estate and a reversion or remainder in lands may, with equal assurance, sever the title to personal property, giving it for a term or life to one, with the remainder to others, upon the same contingencies as land is devised, guarding always against perpetuities. Stallcup v. Cronley's Trustee, 117 Ky. 547 , 78 S.W. 441, 25 Ky. L. Rptr. 1675 , 1904 Ky. LEXIS 215 ( Ky. 1904 ).

4.Contingent Remainders.

A vested remainder is a fixed interest to take effect in enjoyment after a particular estate is spent, and is an actual estate which may be sold and the title passed to the purchaser, but a contingent remainder is one limited so as to depend on some event or condition, which is uncertain and may never happen or be performed. Lindenberger v. Cornell, 190 Ky. 844 , 229 S.W. 54, 1921 Ky. LEXIS 514 ( Ky. 1921 ).

Interest created by will devising land to children with provision a son would inherit daughter’s share if she predeceased him and vice versa was held to be a contingent remainder and daughter could convey her interest in her brother’s part. Roy v. West, 194 Ky. 96 , 238 S.W. 167, 1922 Ky. LEXIS 101 ( Ky. 1922 ). See Clay v. Clay, 199 Ky. 4 , 250 S.W. 829, 1923 Ky. LEXIS 788 ( Ky. 1923 ). But see Vittitow v. Birk, 290 Ky. 235 , 160 S.W.2d 624, 1942 Ky. LEXIS 376 ( Ky. 1942 ).

Provision in deed whereby son and wife agreed to convey land to mother if they died leaving no child created contingent estate in mother and did not vest an interest in unborn child. Houston v. Pritchett, 216 Ky. 355 , 287 S.W. 936, 1926 Ky. LEXIS 924 ( Ky. 1926 ).

Remainders are contingent when the estate is limited to take effect either to a dubious and uncertain person or upon a dubious and uncertain event. Ford v. Jones, 223 Ky. 327 , 3 S.W.2d 781, 1927 Ky. LEXIS 961 ( Ky. 1927 ).

Where, under the provisions of a will, a gift to a class is postponed until after the termination of a preceding estate, as a rule, those members of the class, and those only, take who are in existence when such preceding estate terminates and the time for distribution comes. Ford v. Jones, 223 Ky. 327 , 3 S.W.2d 781, 1927 Ky. LEXIS 961 ( Ky. 1927 ).

A devise of a contingent remainder of any kind is the subject of a sale and conveyance, but the purchaser will receive nothing unless the contingent remainderman survives until the event occurs upon which his estate vests. Caperton v. Smith's Trustee, 268 Ky. 223 , 104 S.W.2d 440, 1937 Ky. LEXIS 437 ( Ky. 1937 ).

Where will set up a trust for a wife’s benefit to continue for “the life and widowhood of my wife,” the wife to receive only one third of the income if she should remarry, and after the wife’s death the trust to terminate and the corpus to be distributed “equally to my children, the descendants of any deceased child to take their parent’s share,” the remainders in testator’s children and grandchildren were contingent and could not vest until the wife’s death and the trust could not be terminated by deeds from the children to their mother. Weisser's Trustee v. Mulloy, 276 Ky. 427 , 124 S.W.2d 496, 1939 Ky. LEXIS 535 ( Ky. 1939 ).

It is settled that vested remainders pass under KRS 391.010 and there is no plausible reason why the same should not be or is true with respect to contingent remainders that are not conditioned expressly or by implication on the remainderman’s survival at the time of vesting. Saulsberry v. Second Nat’l Bank, 400 S.W.2d 506, 1966 Ky. LEXIS 433 ( Ky. 1966 ), overruling Leppes v. Lee, 92 Ky. 16 , 13 Ky. L. Rptr. 317 , 17 S.W. 146 (1891), to the extent of conflict.

5.Life Estate with Power to Sell Remainder.

A life estate is one thing and power to convey remainder another although both are acquired by the same deed and a deed purporting to convey fee simple title would pass the life estate under power of conveyance subject to liens of creditors and would pass the remainder under power of sale. Roby v. Arterburn, 269 Ky. 816 , 108 S.W.2d 873, 1937 Ky. LEXIS 672 ( Ky. 1937 ).

6.Retention of Use and Possession.

In this jurisdiction, where title to property can be conveyed by deed but use and possession retained until a future time, it seems that delivery of deed to a third person, to be delivered to grantee at grantor’s death, can be construed to be the passing of the present interest in title of subject of deed and retention by grantor of use and possession during his life, and when deed is delivered to grantee, as between parties to it and their privies, it will relate back for purpose of vesting title to delivery of deed to third person for grantee. Kirby v. Hulette, 174 Ky. 257 , 192 S.W. 63, 1917 Ky. LEXIS 187 ( Ky. 1917 ).

7.Homestead Right.

A homestead right is not an estate in land, but is an exemption from execution; it can attach to any real property that can be seized under an execution and the nature or quantum of the estate in which the homestead is claimed is immaterial, as a fee-simple title is not necessary to the right of homestead. Howard v. Mitchell, 268 Ky. 429 , 105 S.W.2d 128, 1936 Ky. LEXIS 775 ( Ky. 1936 ).

8.Executory Devise.

Future interest created by will was held to be an executory devise or shifting use, and not a remainder. McWilliams v. Havely, 214 Ky. 320 , 283 S.W. 103, 1926 Ky. LEXIS 330 ( Ky. 1926 ).

A life estate may be carved out of a preceding fee simple by executory devise. In such case the fee is divested only so far as is necessary to give effect to the executory life estate and, subject thereto, remains in the heirs of the prior devisee in fee. Medcalf v. Whitely's Adm'x, 290 Ky. 94 , 160 S.W.2d 348, 1942 Ky. LEXIS 351 ( Ky. 1942 ).

Under language in will “I will, bequeath and devise all my personal property not otherwise disposed of and all real estate wheresoever situated to my legal heirs as the law of Kentucky directs. If either of my grandsons should die leaving no issue of the body then the remaining grandson shall have his brother’s share as well as his own. This shall apply to real estate as well as personal property.” Each grandson took a defeasible or a determinable fee in one half of testator’s real estate and in addition each acquired an “executory interest” in the lands of the other which he could convey at will and, when one grandson conveyed his interest, he parted not only with his then existent estate, the defeasible fee in one half, but with his right to take the future estate which would arise in the other one half should the other grandson die without issue. Vittitow v. Birk, 290 Ky. 235 , 160 S.W.2d 624, 1942 Ky. LEXIS 376 ( Ky. 1942 ). (See KRS 381.218 abolishing determinable fee and creating fee simple with right of entry.).

9.Equitable Interest in Trust.

A will creating a defeasible fee disposes of the testator’s entire interest in the land at the time of his death, although the title may be defeated afterwards by the happening of the contingency named in the will. A fee simple estate may be limited by a provision that it shall terminate by the happening of a contingency, and it is still a fee, since it will last forever if the contingency does not happen and a son could convey his equitable interest in a devise in trust for him until his sister reached 21 or died. Hopson's Trustee v. Hopson, 282 Ky. 181 , 138 S.W.2d 365, 1940 Ky. LEXIS 156 ( Ky. 1940 ).

Restraints against alienation are not favored by law and heir with an undivided two thirds (2/3) of designated land in trust until his sister reached 21 years of age or died could convey his equitable interest and the sister, who was coowner, could not have forfeiture declared against her brother’s interest. Newsom v. Barnes, 282 Ky. 264 , 138 S.W.2d 475, 1940 Ky. LEXIS 164 ( Ky. 1940 ).

10.Sale of Reversionary Right.

Grantor had power to sell and convey her vested reversionary right to property conveyed to be held so long as it was used for a school or to release it at any time to the holder of the defeasible or determinable fee thereby vesting complete title to the land in the grantees or their successors and, being an interest in property which could be sold, it was an interest which descended to the heirs in the absence of testamentary disposition. Fayette County Board of Education v. Bryan, 263 Ky. 61 , 91 S.W.2d 990, 1936 Ky. LEXIS 133 ( Ky. 1936 ). (See KRS 381.218 abolishing possibility of reverter and fee simple determinable and creating right of entry and fee simple subject to right of entry for conditions broken and KRS 381.210 providing reversion may be sold.).

11.Form of Conveyance.

Where holder of life estate indorsed on the margin of the page on which the deed was recorded that he relinquished all right or claim in the deed, three of the requisites of a valid conveyance were missing: (1) name of grantee, (2) description of fee granted, and (3) consideration and the holder of the life estate was not divested of it. Miller v. Prater, 267 Ky. 11 , 100 S.W.2d 842, 1937 Ky. LEXIS 269 ( Ky. 1937 ).

Cited:

Saulsberry v. Second Nat’l Bank, 400 S.W.2d 506, 1966 Ky. LEXIS 433 ( Ky. 1966 ).

Research References and Practice Aids

Kentucky Law Journal.

Roberts, Kentucky Decisions on Future Interests, 1933-1937, 26 Ky. L.J. 269 (1938).

Reed, Future Interests — Rules Against Perpetuities Applied to Options in Favor of Grantor to Purchase Bank the Land Conveyed — Maddox v. Keeler, 33 Ky. L.J. 118 (1945).

Adkins, Future Interests — Gifts Over of Undisposed Property in Kentucky, 36 Ky. L.J. 125 (1947).

Roberts, Kentucky Decisions and Future Interests (1938-1953), 42 Ky. L.J. 3 (1953).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Adverse Possession, § 303.00.

381.050. Estate created by conveyance to husband and wife — Will not to defeat right to the entirety by survivorship.

  1. If real estate is conveyed or devised to husband and wife, unless a right by survivorship is expressly provided for, there shall be no mutual right to the entirety by survivorship between them, but they shall take as tenants in common, and the respective moieties shall be subject to the respective rights of the husband or wife as fixed in KRS Chapter 392, with all other incidents to such tenancy.
  2. Where a conveyance or devise expressly creates a mutual right to the entirety by survivorship in real estate between a husband and wife, no provision of the will of the husband or wife shall be construed to defeat such right to the entirety by survivorship of the surviving spouse.

History. 2143: amend. Acts 1980, ch. 2, § 1, effective July 15, 1980.

NOTES TO DECISIONS

1.Construction.

The effect of this section is to place conveyances to husband and wife upon the same footing as similar conveyances to other parties, unless a right by survivorship is expressly provided for in the conveyance itself. Louisville v. Coleburne, 108 Ky. 420 , 56 S.W. 681, 22 Ky. L. Rptr. 64 , 1900 Ky. LEXIS 59 ( Ky. 1900 ). See In re Brown, 60 F.2d 269, 1932 U.S. Dist. LEXIS 1326 (D. Ky. 1932 ).

The common-law right of survivorship in joint tenancy was abolished by KRS 381.120 , but tenancy by entireties of husband and wife remained as at common law until the enactment of this section. McCallister v. Folden's Assignee, 110 Ky. 732 , 62 S.W. 538, 23 Ky. L. Rptr. 113 , 1901 Ky. LEXIS 126 ( Ky. 1901 ).

KRS 381.120 is modified by this section, the latter providing, in effect, that if real estate be conveyed or devised to husband and wife, unless a right of survivorship is expressly provided for, there will be no mutual right to the entirety by survivorship between them. Francis v. Vastine, 229 Ky. 431 , 17 S.W.2d 419, 1929 Ky. LEXIS 786 ( Ky. 1929 ).

When the right of survivorship exists by deed, it is governed by the principles announced by the Court of Appeals in construing the common law governing in such cases. Francis v. Vastine, 229 Ky. 431 , 17 S.W.2d 419, 1929 Ky. LEXIS 786 ( Ky. 1929 ).

At common law a conveyance of land to the husband and wife constituted an estate by entireties, and death terminated the title in such estate of the first one dying and the survivor held the entire estate; but the common law in this respect was superseded or annulled by this section. Mastin v. Mastin's Adm'r, 243 Ky. 830 , 50 S.W.2d 77, 1932 Ky. LEXIS 207 ( Ky. 1932 ). See Preston v. Preston's Adm'x, 245 Ky. 552 , 53 S.W.2d 957, 1932 Ky. LEXIS 633 ( Ky. 1932 ).

2.Life Estates.

Conveyance to husband and wife for and during their natural lives with remainder in fee to their child or children if any be left at the time of their death came within the exception provided by this section, and secured to the wife a right by survivorship to the entire property during her natural life and she, having survived the husband, had the right to maintain action in her own name for entire injury complained of. Louisville v. Coleburne, 108 Ky. 420 , 56 S.W. 681, 22 Ky. L. Rptr. 64 , 1900 Ky. LEXIS 59 ( Ky. 1900 ).

A provision in deed conveying land to husband and wife “during their natural lives only, and at their death the same is to revert to the legal heirs of the party of the first part” amounts to an express provision for right of survivorship, unless presumption is rebutted by terms of deed and the survivor is not required to surrender one half the property. McCallister v. Folden's Assignee, 110 Ky. 732 , 62 S.W. 538, 23 Ky. L. Rptr. 113 , 1901 Ky. LEXIS 126 ( Ky. 1901 ).

This section does not apply to life estates and there was a right of survivorship in life estates even though no such right was provided for in this seed. Lowery v. Madden, 308 Ky. 342 , 214 S.W.2d 592, 1948 Ky. LEXIS 942 ( Ky. 1948 ).

3.Express Provision for Survivorship.

Right of survivorship was expressly provided for in deed, as the words “or the survivor” were invariably used whenever the names of the husband and wife appeared. Harris v. Taliaferro, 148 Ky. 150 , 146 S.W. 22, 1912 Ky. LEXIS 391 ( Ky. 1912 ).

Where real estate was conveyed or devised to husband and wife with a right of survivorship expressly provided for, the husband, during the life of the wife, could not alienate or forfeit the estate and it could not be subjected to payment of his debts, as the whole of it belonged to the wife as well as to himself, and upon his death prior to her death, the whole estate became hers absolutely. Francis v. Vastine, 229 Ky. 431 , 17 S.W.2d 419, 1929 Ky. LEXIS 786 ( Ky. 1929 ). But see Hoffmann v. Newell, 249 Ky. 270 , 60 S.W.2d 607, 1932 Ky. LEXIS 889 ( Ky. 1932 ).

The contingent right of the husband to succeed to the entirety of title in property now held by himself and wife is an interest that may be taken and sold under execution, subject to defeasance through the wife surviving husband. Hoffmann v. Newell, 249 Ky. 270 , 60 S.W.2d 607, 1932 Ky. LEXIS 889 ( Ky. 1932 ).

It is sufficient if the intent to create a tenancy by entireties is expressed only in the habendum clause. Stambaugh v. Stambaugh, 288 Ky. 491 , 156 S.W.2d 827, 1941 Ky. LEXIS 138 ( Ky. 1941 ).

Tenancy by entireties may arise only by grant or devise, never by descent or other act of law. Stambaugh v. Stambaugh, 288 Ky. 491 , 156 S.W.2d 827, 1941 Ky. LEXIS 138 ( Ky. 1941 ).

When it appears, by express words or from the nature of the case, that grantor or testator intended to create a tenancy by entireties, the instrument will be so construed. Stambaugh v. Stambaugh, 288 Ky. 491 , 156 S.W.2d 827, 1941 Ky. LEXIS 138 ( Ky. 1941 ).

4.— Absolute Fee to Survivor.

Deed to husband and wife “during their joint lives as tenants in common, with remainder in fee simple to the survivor of them” gave husband an undivided one-half (1/2) interest in the right to use, occupancy and rents of the entire property during joint lives and a contingent fee in the entire real estate, and bankrupt husband’s interest passed to trustee in bankruptcy. In re Brown, 60 F.2d 269, 1932 U.S. Dist. LEXIS 1326 (D. Ky. 1932 ).

The chief peculiarity of an estate in joint tenancy is the right of survivorship by which, upon the death of one joint tenant, the entire tenancy remains to the surviving cotenants, not to the heirs or other representatives of the deceased, the last survivor taking the whole estate. Louisville v. Coleburne, 108 Ky. 420 , 56 S.W. 681, 22 Ky. L. Rptr. 64 , 1900 Ky. LEXIS 59 ( Ky. 1900 ).

Where property was conveyed to husband and wife jointly “for and during their joint lives with remainder in fee to the survivor of either, their heirs and assigns forever,” upon the death of the husband, the wife became the owner of the fee by virtue of the deed. Petty v. Petty, 220 Ky. 569 , 295 S.W. 863, 1927 Ky. LEXIS 569 ( Ky. 1927 ).

Deed to husband and wife in fee, providing that land should “revert” to wife at death of husband or to the husband at death of wife, manifested intent that, at the death of either, the survivor was to take title to the whole tract of land. York v. Adams, 277 Ky. 577 , 126 S.W.2d 1077, 1939 Ky. LEXIS 693 ( Ky. 1939 ).

The survivor to a tenancy by entireties takes a fee-simple title. Stambaugh v. Stambaugh, 288 Ky. 491 , 156 S.W.2d 827, 1941 Ky. LEXIS 138 ( Ky. 1941 ).

5.Tenancy in Common.

Since the enactment of this section, where the husband accepts a deed and puts it to record, which conveys land to him and his wife jointly, no matter what his intention was at the time he was buying it, each of them takes an undivided one-half interest in it, in the absence of an allegation and proof of fraud or mutual mistake in deed so conveying. Resulting trusts have been abolished. Mastin v. Mastin's Adm'r, 243 Ky. 830 , 50 S.W.2d 77, 1932 Ky. LEXIS 207 ( Ky. 1932 ). (See Preston v. Preston's Adm'x, 245 Ky. 552 , 53 S.W.2d 957, 1932 Ky. LEXIS 633 ( Ky. 1932 ). But see KRS 381.170 creating constructive trust when grantee takes deed in his own name without consent of person paying consideration or grantee in violation of trust agreement purchases land with effects of another.).

Even though the wife paid entire consideration for property deeded to herself and husband jointly, she took only an undivided one-half interest therein as a tenant in common thereof, without any trust resulting in her favor as to husband’s half interest, where she knew of or consented to such conveyance. Preston v. Preston's Adm'x, 245 Ky. 552 , 53 S.W.2d 957, 1932 Ky. LEXIS 633 ( Ky. 1932 ). (See KRS 381.170 .).

Tenancy in common of property conveyed to husband and wife jointly does not constitute them partners within the meaning of that term in federal bankruptcy act. In re Bowles, 15 F. Supp. 353, 1936 U.S. Dist. LEXIS 1190 (D. Ky. 1936 ).

Circuit court erred by concluding the residence passed to the widow in fee simple at the husband’s death by survivorship inherent to a tenancy by the entirety; legally, they continued joint ownership of the residence as tenants in common after their divorce, and upon the husband’s death, his one-half ownership interest passed to his heirs at law or beneficiaries under his will, while the wife retained her one-half ownership interest in the property as a tenant in common. Wheeler v. Layton, 617 S.W.3d 830, 2021 Ky. App. LEXIS 7 (Ky. Ct. App. 2021).

6.Taking Life of Spouse.

Where husband had been convicted of a felony for taking the life of his wife, he was barred from asserting any interest he would receive as a surviving tenant in residence owned by them. Therefore, the entire value of the residence was a part of the estate of the wife. First Kentucky Trust Co. v. United States, 737 F.2d 557, 1984 U.S. App. LEXIS 21268 (6th Cir. Ky. 1984 ).

Cited:

Fryer v. Klinglesmith, 244 Ky. 497 , 51 S.W.2d 442, 1932 Ky. LEXIS 449 ( Ky. 1932 ).

Research References and Practice Aids

Cross-References.

Distribution of property in case of simultaneous deaths, KRS 397.030 .

Kentucky Law Journal.

Francis, Joint Tenancy and Tenancy by the Entirety Four Unities Requirement, 36 Ky. L.J. 202 (1948).

Rice, Creation of Joint Tenancy by Conveyance of Tenants in Common to Themselves, 40 Ky. L.J. 445 (1952).

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

Treatises

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

381.060. Fee simple created, when — Possession vests in grantee.

  1. Unless a different purpose appears by express words or necessary inference, every estate in land created by deed or will, without words of inheritance, shall be deemed a fee simple or such other estate as the grantor or testator had power to dispose of.
  2. All deeds of bargain and sale, deeds to stand seized to use, deeds of release and deeds of trust, shall be held to vest the possession of the grantor in the grantee to the extent of the estate intended to be conveyed.

History. 491, 2342.

NOTES TO DECISIONS

1.Purpose.

The purpose of the law is to stabilize land titles and to favor vested estates. Weller v. Dinwiddie, 198 Ky. 360 , 248 S.W. 874, 1923 Ky. LEXIS 445 ( Ky. 1923 ). See Snyder v. Snider, 202 Ky. 321 , 259 S.W. 700, 1924 Ky. LEXIS 711 ( Ky. 1924 ).

2.Construction.

A conveyance of real estate may be construed as transferring an absolute title rather than a lesser, if the language employed is susceptible of two (2) constructions. Campbell v. Wells, 278 Ky. 209 , 128 S.W.2d 592, 1939 Ky. LEXIS 408 ( Ky. 1939 ).

This section makes it the duty of the court to adopt a construction favoring a fee where it is not clear what estate the testator intended to devise. Hopson's Trustee v. Hopson, 282 Ky. 181 , 138 S.W.2d 365, 1940 Ky. LEXIS 156 ( Ky. 1940 ).

In applying this section and KRS 381.070 , it has generally been held that the phrases “heirs of the body,” “heirs lawfully begotten of the body,” and other similar expressions are appropriate words of limitation, and are to be construed as creating an estate tail, which by the statute is converted into a fee-simple estate, unless there be something else in the deed or will from which a reasonable inference can be drawn that the words were used in a different sense from their technical and legal signification; so, in deed to husband and wife providing that property was to revert to the wife and her bodily heirs if husband pre-deceased wife, the words “her bodily heirs” were words of limitation and not of purchase and deed conveyed a fee simple to the husband and wife and nothing to the children. Nunn v. Wright, 303 Ky. 288 , 197 S.W.2d 439, 1946 Ky. LEXIS 839 ( Ky. 1946 ).

Under the fiction created by this section where there is possession by a vendee who may never even see the land, the court calls this a nonpossessory interest. Gatliff Coal Co. v. Lawson, 247 S.W.2d 375, 1952 Ky. LEXIS 693 ( Ky. 1952 ).

This section does nothing more than dispense with the necessity of using “words of inheritance” in a deed or will in order to create a fee, and did not change the rule that where there are words in a conveyance or devise indicating intent, they will nevertheless govern. Collings v. Collings' Ex'rs, 260 S.W.2d 935, 1953 Ky. LEXIS 986 ( Ky. 1953 ), overruled, Melton v. Wyatt, 517 S.W.2d 242, 1974 Ky. LEXIS 23 ( Ky. 1974 ).

Where obscure words are contained in a will, the quest is for intention of the testator’s mind, but where they are contained in a deed or contract, a bilateral instrument executed for a consideration, the court must seek the intention of both the grantor and the grantee and, in such a case, the doubts in relation to character of title are resolved in favor of passing entire title. Kentland Coal & Coke Co. v. Blankenship, 300 S.W.2d 570, 1957 Ky. LEXIS 463 ( Ky. 1957 ).

3.Application.

Subsection (1) of this section changes the common-law rule limiting a grant without words of inheritance to a life estate and does not apply where there are any words in the conveyance indicating how the title is to pass. See Hall v. Wright, 121 Ky. 16 , 87 S.W. 1129, 27 Ky. L. Rptr. 1185 , 1905 Ky. LEXIS 172 ( Ky. 1905 ); Combs v. Fields, 211 Ky. 842 , 278 S.W. 137, 1925 Ky. LEXIS 979 ( Ky. 1925 ).

This section merely dispensed with the necessity of using words of inheritance in a deed or will to create a fee and did not apply to a testamentary bequest of residuary estate to widow with power to appoint at her death to some fund that she might see fit. McKee v. Hedges, 297 S.W.2d 45, 1956 Ky. LEXIS 13 ( Ky. 1956 ).

4.Fee Simple.

Where the word “children” is used, as when estate is given to “A and his children,” the uniform ruling has been that A will not take the fee, but whether he will take a life estate or a joint estate with the children is to be determined from a consideration of the relationship of the parties and the language of the instrument. McFarland v. Hatchett, 118 Ky. 423 , 80 S.W. 1185, 26 Ky. L. Rptr. 276 , 1904 Ky. LEXIS 55 ( Ky. 1904 ). See Hall v. Wright, 121 Ky. 16 , 87 S.W. 1129, 27 Ky. L. Rptr. 1185 , 1905 Ky. LEXIS 172 ( Ky. 1905 ); Lawson v. Todd, 129 Ky. 132 , 110 S.W. 412, 33 Ky. L. Rptr. 557 , 1908 Ky. LEXIS 143 ( Ky. 1908 ); Belcher v. Ramey, 173 Ky. 784 , 191 S.W. 520, 1917 Ky. LEXIS 521 ( Ky. 1917 ); Frey v. Clark, 176 Ky. 661 , 197 S.W. 414, 1917 Ky. LEXIS 113 ( Ky. 1917 ).

In view of uncertainty in arriving at intention of maker of deed or will in use of words “heirs of his body,” “bodily heirs,” or the like, it is safer to conclude the conveyance was designed to pass the fee and not a life estate or joint interest; this construction should prevail in absence of language indicating a purpose to invest grantee with only a life estate or joint interest. Lawson v. Todd, 129 Ky. 132 , 110 S.W. 412, 33 Ky. L. Rptr. 557 , 1908 Ky. LEXIS 143 ( Ky. 1908 ). See Belcher v. Ramey, 173 Ky. 784 , 191 S.W. 520, 1917 Ky. LEXIS 521 ( Ky. 1917 ); Williams v. Ohio Valley Banking & Trust Co., 205 Ky. 807 , 266 S.W. 670, 1924 Ky. LEXIS 246 ( Ky. 1924 ); Kinnaird v. Farmers' & Merchants' Bank, 249 Ky. 661 , 61 S.W.2d 291, 1933 Ky. LEXIS 577 ( Ky. 1933 ).

Where instrument creates a fee-simple legal estate in land, a subsequent clause which restrains the sale of estate during life of vendee or devisee is void. Brock v. Conkwright, 179 Ky. 555 , 200 S.W. 962, 1918 Ky. LEXIS 256 ( Ky. 1918 ).

The court will not adopt a strained construction to create a trust instead of an absolute gift. If a provision is doubtful, a trust will not be implied, for the law favors the vesting of a fee. Moore v. Garvey's Adm'r, 290 Ky. 61 , 160 S.W.2d 363, 1942 Ky. LEXIS 354 ( Ky. 1942 ).

5.— Words of Inheritance.

The archaic notion of requiring “words of inheritance” in order to transfer a fee simple absolute is no longer the law. Ratliff v. Higgins, 851 S.W.2d 455, 1993 Ky. LEXIS 6 ( Ky. 1993 ).

Where the deed clause stated that the pump and engine company and its successors agreed and covenanted with the neighbors’ predecessors to supply adequate water and that this agreement was appurtenant to the land, this was sufficient to create a covenant that ran with the land pursuant to KRS 381.060(1), despite the failure to use words of inheritance. Camenisch v. City of Stanford, 140 S.W.3d 1, 2003 Ky. App. LEXIS 211 (Ky. Ct. App. 2003).

6.— Will.

Though devise to a survivor and his descendants did not at common law create an estate tail, under our statutes it creates more than a life estate in survivor; considering devise of land to two (2) grandsons, it was held that upon death of one (1) without child, the other, if living, takes the property, and, if he is dead, it passes to his descendants. Simpson v. Adams, 127 Ky. 790 , 106 S.W. 819, 32 Ky. L. Rptr. 617 , 1908 Ky. LEXIS 21 ( Ky. 1908 ).

In case of doubt as to proper construction of a will, it is the duty of the court to adopt construction which would establish a fee rather than a life estate. Washer's Ex'r v. Washer's Ex'rs, 143 Ky. 645 , 137 S.W. 227, 1911 Ky. LEXIS 485 ( Ky. 1911 ). See Blackwell v. Blackwell, 147 Ky. 264 , 143 S.W. 1010, 1912 Ky. LEXIS 203 ( Ky. 1912 ); Snyder v. Snider, 202 Ky. 321 , 259 S.W. 700, 1924 Ky. LEXIS 711 ( Ky. 1924 ); Liberty Bank & Trust Co. v. Bimbas, 227 Ky. 643 , 13 S.W.2d 1001, 1929 Ky. LEXIS 938 ( Ky. 1929 ).

A devise of all real and personal property, standing alone, would, considered in light of statute, create a fee. Weller v. Dinwiddie, 198 Ky. 360 , 248 S.W. 874, 1923 Ky. LEXIS 445 ( Ky. 1923 ). See Snyder v. Snider, 202 Ky. 321 , 259 S.W. 700, 1924 Ky. LEXIS 711 ( Ky. 1924 ).

If the intention of the testator could be ascertained from the language of the will, that intention controlled, regardless of collateral and subsidiary rules which might be employed in arriving at the intention when it was obscure. Jones v. Jones' Ex'rs, 198 Ky. 756 , 250 S.W. 92, 1923 Ky. LEXIS 559 ( Ky. 1923 ). See State Bank v. Rose's Adm'r, 219 Ky. 562 , 293 S.W. 1087, 1927 Ky. LEXIS 393 ( Ky. 1927 ).

Where husband and wife held land as tenants in common with right of survivorship, and husband, in his will, devised the land to wife for life but made no disposition of the remainder, wife was not deprived of her fee estate under the deed by accepting the other benefits of the will. York v. Adams, 277 Ky. 577 , 126 S.W.2d 1077, 1939 Ky. LEXIS 693 ( Ky. 1939 ).

Testator is presumed to have knowledge of this section. Moorehouse v. Marcum, 288 Ky. 28 , 155 S.W.2d 448, 1941 Ky. LEXIS 44 ( Ky. 1941 ).

Under this section, if the meaning of the words are doubtful and obscure and it cannot clearly be determined what estate the grantor intended to convey, then it would be the duty of the court to adopt that construction favoring a fee and a deed conveying to “granddaughter and her bodily heirs” vested in her a fee-simple title under this section and KRS 381.070 and not a life estate with remainder to her bodily heirs. McGinnis v. Hood, 289 Ky. 669 , 159 S.W.2d 1018, 1942 Ky. LEXIS 619 ( Ky. 1942 ).

An early vesting of an estate is favored in the absence of a clear manifestation of a contrary intention and, if an attempted qualification or limitation of a testamentary grant is ambiguous, the grant will be regarded as absolute. Winn v. William, 292 Ky. 44 , 165 S.W.2d 961, 1942 Ky. LEXIS 24 ( Ky. 1942 ).

Where a testator leaves a gift upon his widow’s death “equally to my children but to be held in trust for them and only the income to be paid them,” this section assumes the testator intended an absolute rather than a qualified estate since his intention is not readily apparent so that the children of the testator received a fee simple, not a life estate. Arnold v. Barber, 472 S.W.2d 466, 1971 Ky. LEXIS 189 ( Ky. 1971 ).

7.— — Nondefeasible or Absolute.

Where clause of devise to children provided share of child dying without issue descended to heirs of testator, and one (1) died childless after testator, clause was construed as contemplating death before testator and deceased child took absolute estate which passed to her heirs. Jackman v. Jackman, 73 S.W. 776, 24 Ky. L. Rptr. 2245 (1903).

Will giving property to sister and providing on her death any of it remaining should go to another gave land to sister in fee simple with power to convey. Galloway v. Durham, 118 Ky. 544 , 81 S.W. 659, 26 Ky. L. Rptr. 445 , 1904 Ky. LEXIS 67 ( Ky. 1904 ).

Will devising certain property to wife was deemed to give her a fee-simple title with full power of disposition. Wood v. Wood, 127 Ky. 514 , 106 S.W. 226, 32 Ky. L. Rptr. 408 , 1907 Ky. LEXIS 162 ( Ky. 1907 ).

Devise to wife of all property “for her sole use and benefit, to use the same for her and her children as she may see proper” gave a fee to wife, unrestricted by use clause. Schneiderhahn's Guardian v. Zeller, 110 S.W. 834, 33 Ky. L. Rptr. 694 (1908).

The purpose of clause referring to death of devisee without issue was not to qualify fee simple estate but to provide who should take in case devisee died before life tenant. Cassity v. Riley, 158 Ky. 507 , 165 S.W. 679, 1914 Ky. LEXIS 654 ( Ky. 1914 ). See Jewell v. White, 166 Ky. 325 , 179 S.W. 212, 1915 Ky. LEXIS 679 ( Ky. 1915 ).

Devise to wife of remainder of estate for her use and benefit, with no devise over and no evidence of intention to create merely a life estate, was construed to be a devise in fee simple. Young's Guardian v. Shaver's Ex'x, 186 Ky. 608 , 217 S.W. 902, 1920 Ky. LEXIS 10 ( Ky. 1920 ).

Language employed in will that “at the death of my wife all property belonging to her shall be equally divided between my heirs” did not restrict or limit the fee previously given her by the will to a life estate but simply meant that such property as was not disposed of during her life or that remained at her death should go to testator’s children. Snyder v. Snider, 202 Ky. 321 , 259 S.W. 700, 1924 Ky. LEXIS 711 ( Ky. 1924 ).

Where will provided that property in trust for children should be appraised and then each daughter might elect to take certain real estate at appraised value, and residue should be divided to let all children take equally, daughters who selected real estate took it in fee, in absence of intention to contrary in will. Liberty Bank & Trust Co. v. Bimbas, 227 Ky. 643 , 13 S.W.2d 1001, 1929 Ky. LEXIS 938 ( Ky. 1929 ).

Where subsequent clause qualifies first clause giving absolute fee, effect will be given to intent of testator to limit devise. Walker v. Walker's Adm'r, 239 Ky. 501 , 39 S.W.2d 970, 1931 Ky. LEXIS 808 ( Ky. 1931 ).

Where will devised realty to widow in fee simple as long as she remained testator’s widow, but there was no devise over in event of remarriage, and widow was residuary devisee, widow acquired a nondefeasible fee. York v. York, 275 Ky. 573 , 122 S.W.2d 140, 1938 Ky. LEXIS 469 ( Ky. 1938 ).

“It is all to go to Elizabeth” conferred a fee simple. Clay v. McNabb, 286 Ky. 751 , 151 S.W.2d 1027, 1941 Ky. LEXIS 334 ( Ky. 1941 ).

Where will provided that “I want my sister, Mrs. M. H. Coleman, to have what I leave in the event she survives me to use as near following directions as possible,” it did not create a trust but vested a fee-simple title in the named devisee, in the absence of any evidence as to a promise by the devisee to use the property for a specified purpose. Moore v. Garvey's Adm'r, 290 Ky. 61 , 160 S.W.2d 363, 1942 Ky. LEXIS 354 ( Ky. 1942 ).

Devise to A and B of “all my real estate and at their death to their legal heirs” was, the will not indicating to the contrary, to be a devise in fee to A and B. Cummings v. Nunn, 290 Ky. 609 , 162 S.W.2d 213, 1942 Ky. LEXIS 469 ( Ky. 1942 ).

Provision in same will that one (1) child should collect income from land and divide it with other child fell with attempted restraint on alienation and, standing alone, would not have been sufficient to destroy the fee. Winn v. William, 292 Ky. 44 , 165 S.W.2d 961, 1942 Ky. LEXIS 24 ( Ky. 1942 ).

Where will provided that property should be held “in trust” for devisees until they reached the age of 25 years, but did not state the design, object, purpose or character of the trust, or define the powers and duties of the trustee, a dry trust was created which was ineffectual to deprive the devisees of the fee-simple title to the property. Winn v. William, 292 Ky. 44 , 165 S.W.2d 961, 1942 Ky. LEXIS 24 ( Ky. 1942 ).

Where will stated that it was testator’s purpose to divide his estate equally between his children but that he did not want his land sold “unless the committee hereafter thinks best,” and there was no further provision in the will for a “committee” other than a provision for the appointment of arbitrators to determine disputes as to division of the property and its income, there being no trustee appointed to hold title, the attempted restraint on alienation was so indefinite and unreasonable as to be void, with the result that a fee-simple title passed to the children. Winn v. William, 292 Ky. 44 , 165 S.W.2d 961, 1942 Ky. LEXIS 24 ( Ky. 1942 ).

Where will stated “I give[,] devise and bequeath all of the property I own ... to use and dispose of as she my lawful wedded wife ... chooses. I make this will expressly for the benefit and maintenance of my wife,” the will vested a fee-simple title in the widow. Dudley v. Wallingford, 292 Ky. 390 , 166 S.W.2d 857, 1942 Ky. LEXIS 100 ( Ky. 1942 ).

Where deed conveyed property to grantee for life, and upon her death to grantee’s son for his life, and upon his death “to go to his son, A. V. Combs, to be held for the children of said A. V. Combs,” the deed vested a present fee-simple title in the children of A. V. Combs, subject to the life estates of their grandfather and great-grandmother, notwithstanding that the children were named only in the habendum clause and not in the granting clause, the only interest acquired by A. V. Combs was that of trustee of a naked trust for his children. Combs v. Combs, 292 Ky. 445 , 166 S.W.2d 969, 1942 Ky. LEXIS 109 ( Ky. 1942 ).

Where will devised all property to testator’s wife absolutely, with full power to convey, but with subsequent clause devising over to others “any property remaining of my estate” at the death of the wife, the wife took an absolute fee, and did not hold the property in trust for the subsequent devisees. Ridley v. Shepard, 293 Ky. 91 , 168 S.W.2d 550, 1943 Ky. LEXIS 569 ( Ky. 1943 ).

Devise of estate to wife “and her heirs” gave the widow absolute title with no limitation upon her power of disposition, the word “heirs” as used in the will being words of limitation vesting a fee, since no contrary intention was manifest. Bell v. Holdbrook, 299 Ky. 843 , 187 S.W.2d 433, 1945 Ky. LEXIS 789 ( Ky. 1945 ).

In absence of express words or necessary inference in will indicating intent to give other than a fee-simple title, devise of remainder to devisee “to be absolutely under her control” vested a fee-simple title. McKnight v. Fleming, 309 Ky. 486 , 218 S.W.2d 44, 1949 Ky. LEXIS 743 ( Ky. 1949 ).

When testator bequeathed and devised to his wife his entire estate to use and dispose of as she deemed fit with a provision that if, at the time of her death, she was the owner of any of the property, it was to be divided equally between testator’s three (3) children by a previous marriage, he conveyed a fee to his wife under this section. Brammer v. Wallace, 198 F.2d 742, 1952 U.S. App. LEXIS 3235 (6th Cir. Ky. 1952 ).

8.— — Defeasible.

Sons, under mother’s will, took a defeasible fee or vested remainder in land, to which they, collectively, could convey a fee-simple title. Forsythe v. Lansing's Ex'rs, 109 Ky. 518 , 59 S.W. 854, 22 Ky. L. Rptr. 1064 , 1900 Ky. LEXIS 234 ( Ky. 1900 ).

A will creating a defeasible fee disposes of the testator’s entire interest in the land at the time of his death, although the title may be defeated afterwards by the happening of the contingency named in the will. A fee-simple estate may be limited by a provision that it shall terminate by the happening of a contingency, and it is still a fee, since it will last forever if the contingency does not happen. Hopson's Trustee v. Hopson, 282 Ky. 181 , 138 S.W.2d 365, 1940 Ky. LEXIS 156 ( Ky. 1940 ).

Will giving to “my beloved wife all my personal property and all my realty after all my just debts are paid so long as she remains my widow” created a fee in widow, defeasible on her remarriage. Hopson's Trustee v. Hopson, 282 Ky. 181 , 138 S.W.2d 365, 1940 Ky. LEXIS 156 ( Ky. 1940 ).

Husband’s will devising all his property to his widow “as long as she remains the wife of me, James S. Cuddy” with the “right to sell and convey any part of this property to support herself that she sees need to as I do not want any of my brother and sisters to try to take it or any part of it from her” gave widow a fee-simple title defeasible only if she remarried which went to her heirs on her death without remarriage. Cuddy v. McIntyre, 312 Ky. 606 , 229 S.W.2d 315, 1950 Ky. LEXIS 720 ( Ky. 1950 ).

Where will devised property to wife of testator so long as she remained testator’s widow and widow did not remarry, she acquired a fee-simple estate in such property and had full right and power to dispose of it by will. Taylor v. Farrow, 239 S.W.2d 73, 1951 Ky. LEXIS 845 ( Ky. 1951 ).

Devise to wife “so long as she remains my widow, giving her the right to dispose of any and all property as she may see fit” and “in the event of her marriage the residue of my estate shall revert to my brother or his heirs” gave the wife a defeasible fee simple which became absolute upon her death without remarriage. Ramsey v. Holder, 291 S.W.2d 556, 1956 Ky. LEXIS 388 ( Ky. 1956 ).

To resolve a boundary dispute, the appellate court interpreted the phrase in a will devising property “so long as she remains a widow” and held that in accordance with KRS 381.060(1) the widow was devised a fee simple subject to executory interest contingent upon divestment in the event she remarried. Lee v. Tipton, 2012 Ky. App. LEXIS 72 (Ky. Ct. App. May 18, 2012), review denied, ordered not published, 2012 Ky. LEXIS 462 (Ky. Dec. 12, 2012).

9.— — Life Estate.

Interest in remainder is a fee simple, unless remainderman dies after execution of will and before death of testator. Baxter v. Isaacs, 71 S.W. 907, 24 Ky. L. Rptr. 1618 (1903). See Dalmazzo v. Simmons, 78 S.W. 179, 25 Ky. L. Rptr. 1532 (1904).

Where an estate is devised to one (1) for life, with remainder to another, and, if the remainderman die without children or issue, then to a third person, the rule is that the words “dying without issue” are restricted to the death of the remainderman before the termination of the particular estate and not to death in testator’s lifetime. Jewell v. White, 166 Ky. 325 , 179 S.W. 212, 1915 Ky. LEXIS 679 ( Ky. 1915 ). See Harvey v. Bell, 118 Ky. 512 , 81 S.W. 671, 26 Ky. L. Rptr. 381 , 1904 Ky. LEXIS 69 ( Ky. 1904 ).

Omission of words of inheritance together with other words used and necessary inference from them manifested testator’s intention to devise to wife merely a life estate. Bain v. Hardin, 223 Ky. 792 , 4 S.W.2d 745, 1928 Ky. LEXIS 442 ( Ky. 1928 ).

Devise to daughter and “heirs of her body begotten, their grandchildren,” gave life estate to daughter with remainder in fee to her children, especially when this disposal is confirmed by other language of deed. Ely v. United States Coal & Coke Co., 243 Ky. 725 , 49 S.W.2d 1021, 1932 Ky. LEXIS 191 ( Ky. 1932 ).

Where will gives devisee an estate for life and, at the latter’s death, to his issue, if any, but makes no disposition in case devisee dies without issue, the undisposed remainder descends as intestate property of the testator and, where devisee is sole heir of testator, he may dispose of fee by his will, if he dies without issue. Mansur v. Security Trust Co., 279 Ky. 453 , 130 S.W.2d 768, 1939 Ky. LEXIS 275 ( Ky. 1939 ).

Will giving residuary estate to widow “during her life” and, upon her death, to children in equal shares created life estate in widow, and subsequent clause that widow could give any of children such sums as she thought proper did not enlarge her estate but merely permitted her to make advancements to children up to the amount of their ultimate shares. Pfeiffer v. Gates, 281 Ky. 445 , 136 S.W.2d 542, 1940 Ky. LEXIS 47 ( Ky. 1940 ).

Where a clause of a will devises property to one (1) devisee apparently in fee simple but a subsequent clause devises the same property to another at the death of the first taker, the former takes a life estate and the latter the fee. Woods v. Hughes, 290 Ky. 99 , 160 S.W.2d 339, 1942 Ky. LEXIS 348 ( Ky. 1942 ).

Where will devised residue of estate to testatrix’ son, with proviso that if son should die before his wife, the property should go to the wife during her life, the son took a fee-simple title, subject to the life estate carved out in favor of his wife if she survived him. In such case, where the son died first, and by his will conveyed his entire estate to his wife, her life estate merged with the fee simple acquired by her husband’s will. Medcalf v. Whitely's Adm'x, 290 Ky. 94 , 160 S.W.2d 348, 1942 Ky. LEXIS 351 ( Ky. 1942 ).

Where will devised property to testator’s widow for life or until remarriage, with remainder to three (3) children in equal parts, one third (1/3) going to son in fee and one third (1/3) going to each of daughters for life, with remainder over to their issue, if any, otherwise to surviving brother or sister subject to same conditions as original one third (1/3) of brother and sister, and all three (3) children died before widow, without issue, widow took fee-simple title to property as heir of son, to whom fee would have gone on death of sisters without issue if he had survived them. Hardin v. Sherley, 292 Ky. 275 , 166 S.W.2d 425, 1942 Ky. LEXIS 77 ( Ky. 1942 ).

In such case, the fact that the will made the widow and daughter joint executrices, with power of sale but with no provision as to disposition of proceeds of sale, did not limit the daughter’s estate. Deitchman v. Woosley, 294 Ky. 186 , 171 S.W.2d 256, 1943 Ky. LEXIS 420 ( Ky. 1943 ).

Where testator devised his property to his widow for life, with remainder to his daughter with further provision that if daughter “shall predecease me, or die after me, without issue,” the estate should go to other persons, it was held that the contingent remainder to others could take effect only if the daughter died before the termination of the widow’s life estate and, if the daughter survived the widow, her estate became an absolute fee. Deitchman v. Woosley, 294 Ky. 186 , 171 S.W.2d 256, 1943 Ky. LEXIS 420 ( Ky. 1943 ).

Where will devised residue of property to unmarried daughter “as long as she remains single” and provided that husband and son were to have a home so long as they lived together with the daughter and did not marry and, if daughter or son should pass away, then the property was to be divided between another married daughter and a granddaughter, such will did not devise a defeasible fee-simple interest in unmarried daughter but only a life estate. Thomas v. Stafford, 305 Ky. 559 , 204 S.W.2d 940, 1947 Ky. LEXIS 856 ( Ky. 1947 ).

Where will gave widow trust for life and stated that the trust for life was “not to be construed to divest” her of the fee in the remainder but in a preceding clause stated she had “the right to dispose of any part or all of the said estate by will at her discretion,” she took a life estate with a power of appointment by will. Union Bank & Trust Co. v. Bassett, 253 S.W.2d 632, 1952 Ky. LEXIS 1124 ( Ky. 1952 ).

Where a will stated “I bequeath my grandson’s interest to him and at his death to his heirs and if he should die without heirs I will his interest in my estate to my other grandchildren, that I may have at the time,” the grandson was vested with a life estate with the remainder in fee simple in the heirs of his body if any survive him. Cheuvront v. Haley, 444 S.W.2d 734, 1969 Ky. LEXIS 222 ( Ky. 1969 ).

10.— — Precatory Words.

Precatory words such as “wish” and “desire” may not be merely of precatory character but may be mandatory in their dispositive effect, where it is evident from the language of the will and the circumstances surrounding it that testator intended the words to be mandatory. Froage v. Fisher, 291 Ky. 655 , 165 S.W.2d 358, 1942 Ky. LEXIS 306 ( Ky. 1942 ).

Where first two (2) clauses of will devised and bequeathed all of testatrix’s property, specifically describing it, to her husband “in fee simple,” but last clause of will stated that it was testatrix’ “wish” that upon husband’s death, $10,000 be paid to a child in whom testatrix had shown much interest, and that “the rest of the estate that has come from me” should be equally divided among two (2) persons who were testatrix’s closest relatives, it was held that the last clause qualified the first two (2), and limited husband’s interest to a life estate. Froage v. Fisher, 291 Ky. 655 , 165 S.W.2d 358, 1942 Ky. LEXIS 306 ( Ky. 1942 ).

Words “with the understanding that any of my estate remaining at the time of his death, be given according to a verbal agreement between us” cannot reasonably be construed to be words of limitation, but only as precatory words — words referring to a wish or desire which the testatrix intended to express but never did. Haysley v. Rogers, 255 S.W.2d 649, 1952 Ky. LEXIS 1146 ( Ky. 1952 ).

11.— — Power to Sell or Convey.

A will or deed giving to the vendee or devisee full power to sell and convey passes the absolute fee, and any provision or devise over is absolutely void as inconsistent with or repugnant to the fee. Alsop v. Central Trust Co., 100 Ky. 375 , 38 S.W. 510, 18 Ky. L. Rptr. 830 , 1897 Ky. LEXIS 11 ( Ky. 1897 ). See Clay v. Chenault, 108 Ky. 77 , 55 S.W. 729, 21 Ky. L. Rptr. 1485 , 1900 Ky. LEXIS 12 ( Ky. 1900 ); Cox v. Anderson's Adm'r, 69 S.W. 953, 24 Ky. L. Rptr. 721 (1902); Galloway v. Durham, 118 Ky. 544 , 81 S.W. 659, 26 Ky. L. Rptr. 445 , 1904 Ky. LEXIS 67 ( Ky. 1904 ); Cralle v. Jackson, 81 S.W. 669, 26 Ky. L. Rptr. 417 (1904); Commonwealth v. Stoll's Admr, 132 Ky. 234 , 114 S.W. 279, 1909 Ky. LEXIS 80 (Ky.), different results reached on reh'g, 132 Ky. 237 , 116 S.W. 687 ( Ky. 1909 ); McClelland's Ex'x v. McClelland, 132 Ky. 284 , 116 S.W. 730, 1909 Ky. LEXIS 12 1 ( Ky. 1909 ); Snyder v. Snider, 202 Ky. 321 , 259 S.W. 700, 1924 Ky. LEXIS 711 ( Ky. 1924 ); Sumner v. Borders, 266 Ky. 401 , 98 S.W.2d 918, 1936 Ky. LEXIS 652 ( Ky. 1936 ).

A will or deed giving to the vendee or devisee full power to sell and convey passes the absolute fee, and any provision or devise over is absolutely void as inconsistent with or repugnant to the fee; it is wholly immaterial whether the power to sell or dispose of the property shall have been exercised or not. Clay v. Chenault, 108 Ky. 77 , 55 S.W. 729, 21 Ky. L. Rptr. 1485 , 1900 Ky. LEXIS 12 ( Ky. 1900 ).

Devise to wife of all property for “her lifetime, to manage and dispose of as she may see cause” gave her a fee-simple estate. Alsip v. Morgan, 109 S.W. 312, 33 Ky. L. Rptr. 72 (1908).

Expressly limited life estate to wife by will was not enlarged into fee simple by failure to dispose of remaining interest, in absence of provision giving life tenant power to convey. Covington v. Covington, 196 Ky. 667 , 245 S.W. 275, 1922 Ky. LEXIS 569 ( Ky. 1922 ).

The construction which the Court of Appeals puts upon the word “remainder,” that it is equivalent to “remaining” or “what may be left,” carries with it the power to sell and convey, and that construction itself creates a fee. Weller v. Dinwiddie, 198 Ky. 360 , 248 S.W. 874, 1923 Ky. LEXIS 445 ( Ky. 1923 ).

Will pursuant to which testatrix devised “all the rest and residue of my estate . . . . . to my husband . . . . . to be his absolutely during his lifetime, with right to sell, convey and transfer any property which I may own at my death. He shall have full power to use and expend any part or all of said estate for any purpose whatever . . . . . ; but if any of said estate remains at his death then I will and devise such remainder to Mary Louise Perkins” created only a life estate in husband, with an absolute property in such portion of the assets as were actually used and expended by him during his lifetime. Morgan v. Meacham, 279 Ky. 526 , 130 S.W.2d 992, 1938 Ky. LEXIS 67 ( Ky. 1938 ).

Devise to wife with power of disposition, with devise of remnant to certain others, vested fee in wife absolutely, the attempted secondary devise being regarded as void. Scott v. Smith, 286 Ky. 697 , 151 S.W.2d 770, 1941 Ky. LEXIS 325 ( Ky. 1941 ).

A devise with unlimited power to use, control and dispose of the property devised creates in devisee a fee-simple title and any attempt by testator to devise over after death of first taker is void. Ellis' Adm'r v. Ellis, 289 Ky. 365 , 158 S.W.2d 976, 1942 Ky. LEXIS 564 ( Ky. 1942 ).

Where testator devised farm to two (2) unmarried daughters for life, with provision that “should they marry or die or break up housekeeping” they might sell the farm and should then divide the proceeds among themselves and the testator’s other children equally, the two (2) daughters had only a life estate in the farm, with a qualified right to sell the farm upon the happening of any of the named contingencies and, where they did not exercise the privilege to sell, they had no remainder interest remaining at their death which could be passed by will. Upon death of life tenants, the farm passed, under testator’s will, to the surviving children of the testator and to the issue of his deceased children. Corbin v. Manley, 291 Ky. 289 , 164 S.W.2d 394, 1942 Ky. LEXIS 223 ( Ky. 1942 ).

Where will devised property to testator’s son and two (2) daughters as tenants in common, with mutual right of occupancy and with right of sale by mutual agreement, and with provision that upon death of any of devisees without issue, his interest should pass to the survivors, each devisee was possessed of a defeasible fee in an undivided third of the property, plus the right to the future or executory estates which would come into existence when and if the other devisees died without issue, and during their lifetime each devisee had all the rights and privileges of a fee-simple owner. Sipes v. Boehmer, 291 Ky. 824 , 165 S.W.2d 807, 1942 Ky. LEXIS 326 ( Ky. 1942 ).

Devise to wife “to do as she pleases with” but with a provision in a second clause “after her death it is for Joe,” the testator’s son, gave wife a life estate only and the words “to do as she pleases with” referred to that life estate and should not be construed to confer upon her the power to sell and consume the estate to the detriment of that given the son in remainder. Price v. Price, 298 Ky. 608 , 183 S.W.2d 652, 1944 Ky. LEXIS 964 ( Ky. 1944 ), overruled, Weakley v. Weakley, 237 S.W.2d 524, 1951 Ky. LEXIS 761 ( Ky. 1951 ).

12.— — Devise of Rents or Income.

The unqualified devise of rents and profits of real estate passes the fee-simple title thereof. Shedd's Adm'r v. Gayle, 288 Ky. 466 , 156 S.W.2d 490, 1941 Ky. LEXIS 130 ( Ky. 1941 ). See Scheinman v. Marx, 437 S.W.2d 504, 1969 Ky. LEXIS 444 ( Ky. 1969 ).

Under a bequest or gift of the interest or income of a fund without any limitation as to time, the principal will be regarded as bequeathed also. Scheinman v. Marx, 437 S.W.2d 504, 1969 Ky. LEXIS 444 ( Ky. 1969 ).

Where the testator bequeathed interests in the income of his estate to certain relatives with the interest passing to his designated nieces and nephews on the deaths of the primary beneficiaries and directives were contained in the will as to management of the estate but no provision was made for the distribution of the corpus, the fee, whether immediate or in remainder, vested as of the date of death of the testator, but the beneficiaries thereof were not entitled to possession until such time as the duties imposed by the terms of the will had been fully executed. Scheinman v. Marx, 437 S.W.2d 504, 1969 Ky. LEXIS 444 ( Ky. 1969 ).

Where the testator bequeathed interests in the income of his estate to certain relatives with the interest passing to his designated nieces and nephews on the deaths of the primary beneficiaries but no provision was made for the distribution of the corpus, the testator did not die intestate as to the remainder, for the fee simple vested in the remainder beneficiaries. Scheinman v. Marx, 437 S.W.2d 504, 1969 Ky. LEXIS 444 ( Ky. 1969 ).

13.— Deed.

A reservation in deed of passway to person not a party to deed was valid; a right of way in fee may be reserved without words of inheritance. Beinlein v. Johns, 102 Ky. 570 , 44 S.W. 128, 19 Ky. L. Rptr. 1969 , 1898 Ky. LEXIS 16 ( Ky. 1898 ), overruled in part, Townsend v. Cable, 378 S.W.2d 806, 1964 Ky. LEXIS 211 ( Ky. 1964 ).

Deed to wife conveyed only life estate to her, with remainder to husband in fee, subject to being divested by wife leaving a surviving child, where addition to habendum clause came after covenant of general warranty. Atkins v. Baker, 112 Ky. 877 , 66 S.W. 1023, 23 Ky. L. Rptr. 2224 , 1902 Ky. LEXIS 233 ( Ky. 1902 ). See Virginia Iron, Coal & Coke Co. v. Webb, 263 F. 821, 1920 U.S. App. LEXIS 2096 (6th Cir. Ky. 1920 ).

In case of a voluntary deed, the law presumes more in favor of the delivery of the deed than in the case of a deed of bargain and sale. Preston v. Harlow, 276 Ky. 799 , 125 S.W.2d 726, 1939 Ky. LEXIS 594 ( Ky. 1939 ).

No certain form is required in a deed as long as the intent can be ascertained. Preston v. Harlow, 276 Ky. 799 , 125 S.W.2d 726, 1939 Ky. LEXIS 594 ( Ky. 1939 ).

Where granting clause in deed from husband to wife was “as long as she remains my wife, and if not this to be null and void,” but habendum claused was “unto the party of the second part heirs and assigns forever,” the granting clause was not a condition, but a limitation, and the wife’s estate terminated upon her death. Charles v. Shortridge, 277 Ky. 183 , 126 S.W.2d 139, 1939 Ky. LEXIS 636 ( Ky. 1939 ).

Deed by mortgagor to mortgagee, pursuant to contract by which mortgagee was to sell realty for sum sufficient to pay indebtedness, and to pay any excess to mortgagor, and mortgagor had right of possession until sale, had the effect of a mortgage, though deed was absolute on its face. Hatfield v. Corbin Bldg. Supply Co., 279 Ky. 30 , 129 S.W.2d 1025, 1939 Ky. LEXIS 236 ( Ky. 1939 ).

The use of the words “successors and assigns” in the granting clause of a deed to a corporation does not amount to the express grant of a fee. Sherman v. Petroleum Exploration, 280 Ky. 105 , 132 S.W.2d 768, 1939 Ky. LEXIS 86 ( Ky. 1939 ).

Courses and distances must give way to natural objects in a deed, if the natural objects are definitely located. Where the proof shows two (2) or more natural objects that might fill the description, the one (1) will be taken that appears to carry out the intention of the parties and that most nearly conforms to the courses and distances and the quantity of land to be conveyed. Staton v. Lyons, 280 Ky. 531 , 133 S.W.2d 707, 1939 Ky. LEXIS 146 ( Ky. 1939 ).

Where defendant purchased one (1) tract of land from plaintiff and an adjoining tract from group of heirs one (1) of whom was plaintiff, and there was a deficiency of acreage in tract conveyed by plaintiff because of overlapping of tract conveyed by heirs, defendant could recover from plaintiff for deficiency notwithstanding fact that defendant knew of deficiency at time of purchasing heir’s tract. Kentucky Nat'l Park Com. v. Dennison, 281 Ky. 61 , 134 S.W.2d 973, 1939 Ky. LEXIS 9 ( Ky. 1939 ).

Where a wall supports a building which is conveyed, it is presumed that the wall, though not included by the calls of the deed, was intended to be conveyed as part of the building, but the grantee cannot use the wall so as to injure the building of the grantor. Farmers Nat'l Bank v. Moore, 282 Ky. 502 , 139 S.W.2d 420, 1940 Ky. LEXIS 213 ( Ky. 1940 ).

Bankruptcy trustee was permitted to sell a debtor’s interest in property where the interpretation of an entire document showed that a grantor intended to convey a life estate and remainder in certain property, despite fee simple language in the document. Johnson v. Fifth Third Bank, Inc. (In re Carnes), 2005 Bankr. LEXIS 5 (Bankr. E.D. Ky. Jan. 5, 2005).

In a dispute over an antenuptial agreement, a deceased husband waived his right to enforce whatever interest he may have had in a garage or property by his inaction over the course of his marriage; further, that interest, such as it was, ceased to exist upon the execution of a deed that was deemed to be in fee simple under this statute. Bickel v. Haley, 2015 Ky. App. LEXIS 8 (Ky. Ct. App. Jan. 23, 2015), review denied, ordered not published, 2015 Ky. LEXIS 1882 (Ky. Sept. 24, 2015).

14.— — Procedure.

Technical words importing a fee and used both in the granting and habendum clauses must yield to the manifest intent as expressed in a clause following the covenant of general warranty limiting grantee’s interest to a life estate. Atkins v. Baker, 112 Ky. 877 , 66 S.W. 1023, 23 Ky. L. Rptr. 2224 , 1902 Ky. LEXIS 233 ( Ky. 1902 ). See Virginia Iron, Coal & Coke Co. v. Webb, 263 F. 821, 1920 U.S. App. LEXIS 2096 (6th Cir. Ky. 1920 ).

If, upon consideration of all parts of a deed, an intention appears to vest a less estate than a fee, that intention will be carried into effect. Harkness v. Meade, 148 Ky. 565 , 147 S.W. 10, 1912 Ky. LEXIS 484 ( Ky. 1912 ). See Virginia Iron, Coal & Coke Co. v. Webb, 263 F. 821, 1920 U.S. App. LEXIS 2096 (6th Cir. Ky. 1920 ).

The law of the state where the land is situated governs the construction of a deed, insofar as it determines the title or interest that one takes thereunder. Middleton's Trustee v. Middleton, 172 Ky. 826 , 189 S.W. 1133, 1916 Ky. LEXIS 270 ( Ky. 1916 ).

If the granting clause and the habendum clause of a deed are irreconcilable, and the other parts of the deed do not make it appear which the grantor intended should control, the granting clause will prevail. Ratliffe v. Ratliffe, 182 Ky. 230 , 206 S.W. 478, 1918 Ky. LEXIS 359 ( Ky. 1918 ).

Any confused or ambiguous language in deed will be construed against grantor and in favor of grantee. Campbell v. Wells, 278 Ky. 209 , 128 S.W.2d 592, 1939 Ky. LEXIS 408 ( Ky. 1939 ).

A deed regular on its face will not be adjudged a mortgage in the absence of clear and satisfactory proof showing that the instrument was intended to be a mortgage. Evidence supported chancellor’s finding that deed was not a mortgage. Schuster v. Caldwell, 280 Ky. 802 , 134 S.W.2d 624, 1939 Ky. LEXIS 205 ( Ky. 1939 ).

The rule that wills must be so construed, if possible, as to avoid imputing to testator an intention to die intestate as to part of his property has no application in the construction of deeds. Hopson's Trustee v. Hopson, 282 Ky. 181 , 138 S.W.2d 365, 1940 Ky. LEXIS 156 ( Ky. 1940 ).

If the intention of the parties is apparent from the examination of a deed “from its four corners” without regard to its technical and formal divisions, it will be given effect even though, in so doing, technical rules of construction will be violated. Hays v. Kentucky West Virginia Gas Co., 290 Ky. 174 , 160 S.W.2d 376, 1942 Ky. LEXIS 357 ( Ky. 1942 ).

The rule that an habendum creating an estate contradictory or repugnant to that given in the granting clause must be rejected is not a rule of property, but is merely a rule of construction, which will be resorted to only where the court cannot determine which of the clauses was intended to be controlling. Hays v. Kentucky West Virginia Gas Co., 290 Ky. 174 , 160 S.W.2d 376, 1942 Ky. LEXIS 357 ( Ky. 1942 ).

Ambiguous qualifications imposed upon a grant that would otherwise create a fee simple will not be given effect. Winn v. William, 292 Ky. 44 , 165 S.W.2d 961, 1942 Ky. LEXIS 24 ( Ky. 1942 ).

15.— — Nondefeasible or Absolute Fee.

Deed to wife of property “to have, to hold and to use as she may wish” gave her fee-simple estate, the words “to use” not restricting preceding words. Scott v. Scott, 105 S.W. 896, 32 Ky. L. Rptr. 464 (1907).

Deed conveying property to trustee for benefit of grantor’s children and giving trustee full power to sell and convey the trust property conveyed a fee-simple estate to trustee. Maxwell's Committee v. Centennial Perpetual Bldg. & Loan Ass'n, 131 Ky. 18 , 114 S.W. 324, 1908 Ky. LEXIS 111 ( Ky. 1908 ).

Where deed did not mention children of grantee in caption or granting clause, and habendum clause was “to the use of the party of the second part and her children forever,” it is apparent “children” was used in sense of “heirs,” giving grantee a fee-simple title. Miller v. Campbell, 167 Ky. 252 , 180 S.W. 372, 1915 Ky. LEXIS 837 ( Ky. 1915 ).

Where grantors intended to part with all right and interest they had in estate, a deed conveying “all that certain lot or parcel of land . . . . . and being an undivided one-half (1/2) interest” conveyed the fee, although they thought they owned only an undivided one half (1/2) received from their mother since their father had a life estate by curtesy in the other one half (1/2) which he had previously conveyed and grantors owned the fee in it. Campbell v. Wells, 278 Ky. 209 , 128 S.W.2d 592, 1939 Ky. LEXIS 408 ( Ky. 1939 ).

Where consideration for deed was grantee’s agreement to support grantor for life, but there was no reservation of a right of re-entry for breach, nor any provision for reversion, the support agreement was not a condition subsequent, and grantor’s heirs could not maintain an action for rescission. Manning v. Street, 279 Ky. 253 , 130 S.W.2d 735, 1939 Ky. LEXIS 266 ( Ky. 1939 ).

Under deed conveying land to trustees and their successors in perpetual succession in trust for the use of churches “that hold meeting there and for school purposes forever,” the deed reciting a valuable consideration and there being no words implying a condition or limitation, and there being no reversionary clause, the trustees took a fee-simple title. The words “for school purposes” were only descriptive of the nature of the only use the trustees might make of the property, and did not create a limitation or condition on the fee. Therefore, subsequent transfer of title to all school property to state, under act of legislature, did not cause a reverter. Board of Education v. Board of Education, 292 Ky. 261 , 166 S.W.2d 295, 1942 Ky. LEXIS 69 ( Ky. 1942 ).

Where husband, before commencing prison term, deeded his land to his wife, and there was no proof of an express agreement by the wife that she would deed the property back on the husband’s release from prison, the wife did not hold the property in trust for the husband. Moore v. Terry, 293 Ky. 727 , 170 S.W.2d 29, 1943 Ky. LEXIS 695 ( Ky. 1943 ).

16.Life Estate with Power to Consume.

Devisee who had life estate with power to expend and consume did not exercise that power by pledging part of assets as security for his debt, and pledgee acquired only a lien, the title passing to the remainderman, and equity required that creditor first look to devisee’s individual estate before enforcing lien. Morgan v. Meacham, 279 Ky. 526 , 130 S.W.2d 992, 1938 Ky. LEXIS 67 ( Ky. 1938 ).

17.Commissioner’s Deeds.

A commissioner’s deed, made pursuant to a judgment of a court having jurisdiction of subject matter and parties, is as effective to divest prior owner of his every interest in land as his own deed could be. Wiser v. Shacklett, 208 Ky. 317 , 270 S.W. 754, 1925 Ky. LEXIS 276 ( Ky. 1925 ). See East Cairo Ferry Co. v. Brown, 233 Ky. 299 , 25 S.W.2d 730, 1930 Ky. LEXIS 550 ( Ky. 1930 ).

18.Exceptions and Reservations.

An exception keeps the deed from passing the thing excepted, while a reservation reserves something new out of the thing granted. Blackburn v. Piney Oil & Gas Co., 278 Ky. 191 , 128 S.W.2d 192, 1939 Ky. LEXIS 377 ( Ky. 1939 ).

Retention of use of barns, yards, dwellings, orchards and gardens, in deed of mineral rights, was an exception and not a reservation, and excepted only use of surface. Blackburn v. Piney Oil & Gas Co., 278 Ky. 191 , 128 S.W.2d 192, 1939 Ky. LEXIS 377 ( Ky. 1939 ).

Whatever is excepted from a grant remains in the grantor the same as his former title, and may pass by conveyance or descent. Blackburn v. Piney Oil & Gas Co., 278 Ky. 191 , 128 S.W.2d 192, 1939 Ky. LEXIS 377 ( Ky. 1939 ).

19.Easement.

A conveyance to a railroad specifically for a right of way conveys only an easement, and the fact that the deed contains a warranty or designates the conveyed interest as a fee is not controlling. Sherman v. Petroleum Exploration, 280 Ky. 105 , 132 S.W.2d 768, 1939 Ky. LEXIS 86 ( Ky. 1939 ).

A deed must be interpreted as a whole and in the light of the circumstances under which it was made and, in construing an indefinite and ambiguous conveyance of property specifically for a railroad right of way, the court will consider the fact that much railroad right of way is expressly or by operation of law limited to an easement, which is usually sufficient for the use intended. Sherman v. Petroleum Exploration, 280 Ky. 105 , 132 S.W.2d 768, 1939 Ky. LEXIS 86 ( Ky. 1939 ).

Grantor conveyed a narrow strip of land, described by reference to a surveyed line on which railroad tracks were to be laid, “unto the party of the second part and its successors and assigns . . . . . for railroad right of way . . . . . to have and to hold . . . . . unto the party of the second part and its successors and assigns forever, with covenant of general warranty of title.” The deed conveyed an easement for railroad purposes, and not a fee, and the easement reverted to the grantor when the strip was abandoned. Sherman v. Petroleum Exploration, 280 Ky. 105 , 132 S.W.2d 768, 1939 Ky. LEXIS 86 ( Ky. 1939 ).

In a deed conveying a railroad right of way, the words “railroad right of way” cannot be treated as surplusage, since it is presumed that no word or clause in a deed is used without meaning or intent; the words quoted are a declaration of purpose. Sherman v. Petroleum Exploration, 280 Ky. 105 , 132 S.W.2d 768, 1939 Ky. LEXIS 86 ( Ky. 1939 ).

Because railroad owned nothing more than a right-of-way easement, upon abandonment of the easement, it could not be obligated to maintain fencing along the easement and its attempt to convey by quit-claim deed a certain stretch of the right of way to outside parties was ineffective; present owners of the servient estates hold the underlying strips of land discharged with the easement; owners generally holding to the center of the strip of land comprising the easement to be determined on remand. Illinois Cent. R.R. v. Roberts, 928 S.W.2d 822, 1996 Ky. App. LEXIS 139 (Ky. Ct. App. 1996).

20.Merging of Interests.

Where lessors had inherited an undivided interest, and had purchased an additional interest, the lease embraced both interests. Preston's Heirs v. Preston, 279 Ky. 401 , 130 S.W.2d 797, 1939 Ky. LEXIS 286 ( Ky. 1939 ).

21.Vesting Possession.

Where trustee in bankruptcy is not in actual possession of land, and third person asserts good faith adverse claim, the issues and adverse claims should be tried in a plenary action and not in proceeding in bankruptcy. In re Mimms & Parham, 193 F. 276, 1912 U.S. Dist. LEXIS 1784 (D. Ky. 1912 ).

Party maintaining action for forcible entry must have been in actual possession when entry was made; neither right of possession nor constructive possession will avail. Cuyler v. Estis, 64 S.W. 673, 23 Ky. L. Rptr. 1063 (1901).

Delivery of deed showing intent to vest fee-simple title vested possession of land in grantee, and grantee could not be ousted from this constructive possession except by taking of actual possession by someone. Travis v. Bruce, 172 Ky. 390 , 189 S.W. 939, 1916 Ky. LEXIS 264 ( Ky. 1916 ).

Constructive possession is in title holder to land, and, when title of an owner is conveyed and he remains in possession thereafter, he presumably holds under and not against his grantee, unless and until he brings home to grantee the fact he is holding and claiming adversely. Wiser v. Shacklett, 208 Ky. 317 , 270 S.W. 754, 1925 Ky. LEXIS 276 ( Ky. 1925 ).

Grantor of land on delivery of deed parted with his possession and vested it in grantee. Smith v. Feltner, 256 Ky. 325 , 76 S.W.2d 25, 1934 Ky. LEXIS 408 ( Ky. 1934 ).

A vendee in possession under a general warranty deed must sue at law for any breach of warranty and may not have equitable relief of cancellation in absence of extraordinary circumstances, but a vendee not in possession, and who cannot lawfully be put in possession because vendor had no title, may sue in equity for rescission. Creech v. Jenkins, 276 Ky. 163 , 123 S.W.2d 267, 1938 Ky. LEXIS 540 ( Ky. 1938 ).

Where a single deed was so drafted as to constitute a conveyance from the grantors to the grantee, and from the grantee back to the grantors as joint tenants, the intention to make a valid delivery to the grantee was clear, and the deed was valid to create the joint tenancy. Preston v. Harlow, 276 Ky. 799 , 125 S.W.2d 726, 1939 Ky. LEXIS 594 ( Ky. 1939 ).

There can be no such thing as an unvested title to real estate. Hardin v. Sherley, 292 Ky. 275 , 166 S.W.2d 425, 1942 Ky. LEXIS 77 ( Ky. 1942 ).

Under this section possession to land is transferred by deliverance of deed. Gatliff Coal Co. v. Lawson, 247 S.W.2d 375, 1952 Ky. LEXIS 693 ( Ky. 1952 ).

22.Forcible Entry and Detainer.

As a rule forcible entry and detainer can be maintained without regard to the question of title, right of entry, or right of possession. Cuyler v. Estis, 64 S.W. 673, 23 Ky. L. Rptr. 1063 (1901).

Cited:

Boyd v. Gray, 162 F. Supp. 307, 1957 U.S. Dist. LEXIS 2608 (W.D. Ky. 1957 ), vacated, 261 F.2d 914, 1958 U.S. App. LEXIS 5475 (1958).

Research References and Practice Aids

Kentucky Law Journal.

Gilmer, Formalities and Requisites of a Deed in Kentucky, 43 Ky. L.J. 481 (1955).

Matthews, Remnant Gifts Over in Kentucky, 44 Ky. L.J. 397 (1956).

Comments, Tax Implications of the Uniform Marriage and Divorce Act: Does the Davis Rule Still Apply in Kentucky? 66 Ky. L.J. 889 (1977-1978).

Northern Kentucky Law Review.

Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 51 (1979).

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

Abraham Lincoln Issue: Note: Abraham Lincoln and the Evolution of a Fee Simple Deed, 36 N. Ky. L. Rev. 333 (2009).

381.070. Estates tail converted into estates in fee — Limitation on.

All estates heretofore or hereafter created, which, in former times, would have been deemed estates entailed, shall henceforth be held to be estates in fee simple; and every limitation on such an estate shall be held valid, if it would be valid when limited upon an estate in fee simple.

History. 2343.

NOTES TO DECISIONS

1.In General.

Will did not create an estate tail, which would be converted into a fee simple by statute, as none of the technical words necessary to create an estate tail were used. Simpson v. Adams, 127 Ky. 790 , 106 S.W. 819, 32 Ky. L. Rptr. 617 , 1908 Ky. LEXIS 21 ( Ky. 1908 ). See Harper v. Patterson, 147 Ky. 356 , 144 S.W. 42, 1912 Ky. LEXIS 243 ( Ky. 1912 ); Combs v. Fields, 211 Ky. 842 , 278 S.W. 137, 1925 Ky. LEXIS 979 ( Ky. 1925 ); Darch v. Darch's Ex'r, 232 Ky. 666 , 24 S.W.2d 558, 1930 Ky. LEXIS 60 ( Ky. 1930 ); Kerr v. Watkins, 234 Ky. 104 , 27 S.W.2d 679, 1930 Ky. LEXIS 130 ( Ky. 1930 ).

2.Application.

The only power or authority the court has is to look at the words of the instrument under consideration and determine what significance the maker therein intended to give to the words “bodily heirs” or similar terms as used therein. Wilson v. Woodward, 190 Ky. 326 , 227 S.W. 446, 1921 Ky. LEXIS 432 ( Ky. 1921 ).

3.Construction of Words — Rules Governing.

As the existence of estates tail has been prohibited, in the construction of deeds it will not be considered that a person intended to create such an estate unless the language forbids any other construction. Louisville Trust Co. v. Erdman, 58 S.W. 814, 22 Ky. L. Rptr. 729 , 1900 Ky. LEXIS 704 ( Ky. 1900 ). See Combs v. Eversole, 64 S.W. 524, 23 Ky. L. Rptr. 932 , 1901 Ky. LEXIS 455 (Ky. Ct. App. 1901); Belcher v. Ramey, 173 Ky. 784 , 191 S.W. 520, 1917 Ky. LEXIS 521 ( Ky. 1917 ); Wilson v. Woodward, 190 Ky. 326 , 227 S.W. 446, 1921 Ky. LEXIS 432 ( Ky. 1921 ).

Where, upon consideration of instrument as a whole, the court is in doubt as to what estate was intended to be given, a construction will be adopted which passes the fee. Moore's Adm'r v. Sleet, 113 Ky. 60 , 113 Ky. 60 0 , 68 S.W. 642, 24 Ky. L. Rptr. 426 , 1902 Ky. LEXIS 10 ( Ky. 1902 ). See Lawson v. Todd, 129 Ky. 132 , 110 S.W. 412, 33 Ky. L. Rptr. 557 , 1908 Ky. LEXIS 143 ( Ky. 1908 ); Dotson v. Kentland Coal & Coke Co., 150 Ky. 60, 150 S.W. 6, 1912 Ky. LEXIS 838 ( Ky. 1912 ); Edwards v. Cave, 150 Ky. 272 , 150 S.W. 369, 1912 Ky. LEXIS 893 ( Ky. 1912 ); Hayes v. Hayes, 154 Ky. 729 , 159 S.W. 544, 1913 Ky. LEXIS 148 ( Ky. 1913 ); Belcher v. Ramey, 173 Ky. 784 , 191 S.W. 520, 1917 Ky. LEXIS 521 ( Ky. 1917 ); Wilson v. Woodward, 190 Ky. 326 , 227 S.W. 446, 1921 Ky. LEXIS 432 ( Ky. 1921 ); Cox v. Fink, 200 Ky. 219 , 254 S.W. 757, 1923 Ky. LEXIS 57 ( Ky. 1923 ); Williams v. Ohio Valley Banking & Trust Co., 205 Ky. 807 , 266 S.W. 670, 1924 Ky. LEXIS 246 ( Ky. 1924 ); Simons v. Bowers, 258 Ky. 755 , 81 S.W.2d 604, 1935 Ky. LEXIS 246 ( Ky. 1935 ).

Where conveyance is to a person and his “children,” it is uniformly held that such person does not receive the fee, unless from the entire instrument it appears that the grantor used the word “children” in the technical sense of the word “heirs.” McFarland v. Hatchett, 118 Ky. 423 , 80 S.W. 1185, 26 Ky. L. Rptr. 276 , 1904 Ky. LEXIS 55 ( Ky. 1904 ). See Hall v. Wright, 121 Ky. 16 , 87 S.W. 1129, 27 Ky. L. Rptr. 1185 , 1905 Ky. LEXIS 172 ( Ky. 1905 ); Edwards v. Cave, 150 Ky. 272 , 150 S.W. 369, 1912 Ky. LEXIS 893 ( Ky. 1912 ); Belcher v. Ramey, 173 Ky. 784 , 191 S.W. 520, 1917 Ky. LEXIS 521 ( Ky. 1917 ).

The rule that the words “heirs of the body” or “bodily heirs” or similar words create an estate tail, convertible by this section into a fee simple, does not prevail where it appears from other language of the instrument that the words were used as words of purchase and not of limitation. Adair v. Adair's Trustee, 99 S.W. 925, 30 Ky. L. Rptr. 857 (1907).

Where there is a devise by a husband to his wife and her children, the children take the fee and the parent the life estate. Naville v. American Mach. Co., 145 Ky. 344 , 140 S.W. 559, 1911 Ky. LEXIS 861 ( Ky. 1911 ). See Hayes v. Hayes, 154 Ky. 729 , 159 S.W. 544, 1913 Ky. LEXIS 148 ( Ky. 1913 ).

In a will the term “issue” may be employed either as a word of purchase or of limitation, according to which sense will best effectuate the testator’s intention; it is usually construed as a word of limitation, unless there be controlling words clearly showing that the contrary meaning was intended by its use. Bonnycastle v. Lilly, 153 Ky. 834 , 156 S.W. 874, 1913 Ky. LEXIS 925 ( Ky. 1913 ) ( Ky. 1913 ).

“Posterity” embraces descendants to the remotest generation; “issue” is as comprehensive as “posterity” and embraces as does the latter not only children but descendants to the remotest generations. Bonnycastle v. Lilly, 153 Ky. 834 , 156 S.W. 874, 1913 Ky. LEXIS 925 ( Ky. 1913 ) ( Ky. 1913 ).

The controlling rule of construction recognized by the courts of Kentucky is that the intent is to be ultimately determined upon a consideration of the whole deed and with the endeavor to give every part of it meaning and effect; the rules that a conveyance in fee is not overthrown by a subsequent proviso, and that a deed is to be construed strongly against the grantor, are merely aids to the application of the controlling rule. Woodward v. Thissell, 218 F. 810, 1914 U.S. App. LEXIS 1611 (6th Cir. Ky. 1914 ).

An examination of the cases will show that in some of them the Court of Appeals construed the term “bodily heirs” or others of similar import to be words of limitation and not words of purchase, since there was nothing in the instrument to indicate a significance to be given them other than their primary effect as fixed by the law, thus passing a fee-simple estate to the grantee or devisee, while in other cases it was held that, because of expressions found in some parts of the instrument and the particular manner and connection with which the terms were used, the maker intended to use them in the sense of “children,” and the court thereby construed them as words of purchase, giving to the grantee or devisee either a life estate or a joint interest with those included as “children,” dependent upon what the court found was the intention of the grantor or testator. Wilson v. Woodward, 190 Ky. 326 , 227 S.W. 446, 1921 Ky. LEXIS 432 ( Ky. 1921 ).

Devise to son and his bodily heirs, and should he die without bodily heirs then to be divided among his brothers or sisters, gave son only a defeasible fee. Littell v. Littell, 232 Ky. 251 , 22 S.W.2d 612, 1929 Ky. LEXIS 434 ( Ky. 1929 ).

Extrinsic evidence is never admissible to enlarge or diminish estate devised, or to vary legal effect of language of will. Simons v. Bowers, 258 Ky. 755 , 81 S.W.2d 604, 1935 Ky. LEXIS 246 ( Ky. 1935 ).

Where a conveyance is to a person “and his children,” the person takes only a life estate with remainder to the children, unless it appears that the grantor used “children” in the sense of “heirs.” Where a conveyance is to a person “and the heirs of the body” or “and his bodily heirs,” the person takes a fee simple, unless it appears that the words “heirs” was used in the sense of “children,” in which case the person will take only a life estate. Combs v. Combs, 294 Ky. 89 , 171 S.W.2d 13, 1943 Ky. LEXIS 391 ( Ky. 1943 ).

The use of the words “these requests are not to be interpreted as entailing the estate” was to avoid any implication of inconvenience or trouble or involvement of the estate and not the legal aspects of “estates tail.” Bosworth v. Kilbourn, 304 Ky. 628 , 201 S.W.2d 904, 1947 Ky. LEXIS 694 ( Ky. 1947 ).

This section will control except where it is apparent from the entire deed or will that the intention of the testator was to create a life estate in the first taker with remainder to his or her children, and then only when such intention is so clear as to more than overbalance the ordinary meaning of the words “heirs of the body” or “bodily heirs.” Sallee v. Warner, 306 Ky. 846 , 209 S.W.2d 491, 1948 Ky. LEXIS 663 ( Ky. 1948 ).

As the existence of estates tail had been prohibited, in the construction of deeds it could not be considered that a person intended to create such an estate unless the language forbade any other construction. Brann v. Elzey, 83 Ky. 440 , 7 Ky. L. Rptr. 539 , 1885 Ky. LEXIS 91 (Ky. Ct. App. 1885).

“Children” was not, like “heirs,” or, as construed under our law, “heirs of the body,” a word of limitation, importing by its own force a fee-simple estate. Williams v. Duncan, 92 Ky. 125 , 17 S.W. 330, 13 Ky. L. Rptr. 389 , 1891 Ky. LEXIS 134 ( Ky. 1891 ).

4.Fee-Simple Estate — Words Creating.

In view of uncertainty in arriving at intention of maker of deed or will in use of words “heirs of his body,” “bodily heirs,” or the like, it is safer to conclude the conveyance was designed to pass the fee and not a life estate or joint interest; this construction should prevail in absence of language indicating a purpose to invest grantee with only a life estate or joint interest. Lawson v. Todd, 129 Ky. 132 , 110 S.W. 412, 33 Ky. L. Rptr. 557 , 1908 Ky. LEXIS 143 ( Ky. 1908 ). See Belcher v. Ramey, 173 Ky. 784 , 191 S.W. 520, 1917 Ky. LEXIS 521 ( Ky. 1917 ); Williams v. Ohio Valley Banking & Trust Co., 205 Ky. 807 , 266 S.W. 670, 1924 Ky. LEXIS 246 ( Ky. 1924 ); Kinnaird v. Farmers' & Merchants' Bank, 249 Ky. 661 , 61 S.W.2d 291, 1933 Ky. LEXIS 577 ( Ky. 1933 ).

Devise to testator’s sons, “to them and their heirs and their children’s heirs,” created a fee simple. Fox v. Fox, 144 Ky. 632 , 139 S.W. 833, 1911 Ky. LEXIS 689 ( Ky. 1911 ).

Will providing devisee might not sell but only have use and income of property, and that it descend to children’s children, created a fee simple. Parrish v. Burkley, 152 Ky. 730 , 154 S.W. 11, 1913 Ky. LEXIS 729 ( Ky. 1913 ).

Devise to daughter “during her natural life” and then to be held in trust “for her children now living and their lawful issue” created a fee simple. Bonnycastle v. Lilly, 153 Ky. 834 , 156 S.W. 874, 1913 Ky. LEXIS 925 ( Ky. 1913 ) ( Ky. 1913 ).

Devise to trustees for use of testator’s daughters “and their posterity forever” created a fee simple. Bonnycastle v. Lilly, 153 Ky. 834 , 156 S.W. 874, 1913 Ky. LEXIS 925 ( Ky. 1913 ) ( Ky. 1913 ).

The language “I give to my daughter . . . . . to her and the heirs of her body” gave daughter a fee-simple estate under this section not limited by the subsequent clause “with the privilege of willing it to any of my heirs she may see proper.” Jett v. Cheek, 201 Ky. 584 , 257 S.W. 1026, 1924 Ky. LEXIS 598 ( Ky. 1924 ).

Devise to granddaughter “and her children, the heirs of her body” passed a fee simple, as other portion of will showed “children” was used in sense of heirs. Martin v. Martin, 203 Ky. 712 , 262 S.W. 1091, 1924 Ky. LEXIS 979 ( Ky. 1924 ).

The word “heirs” in a devise to widow and her heirs is a word of limitation vesting the fee unless a contrary intent is manifest from the language of the instrument or deductible from the circumstances or situations of the parties. Bell v. Holdbrook, 299 Ky. 843 , 187 S.W.2d 433, 1945 Ky. LEXIS 789 ( Ky. 1945 ).

The words “I will and bequeath to my wife and her heirs” gave widow a fee-simple title. Bell v. Holdbrook, 299 Ky. 843 , 187 S.W.2d 433, 1945 Ky. LEXIS 789 ( Ky. 1945 ).

Devise or conveyance to person and the “heirs of his body,” or similar words, which would at common law have created an estate tail, was by law converted into a fee-simple estate. Deboe v. Lowen, 47 Ky. 616 , 1848 Ky. LEXIS 148 ( Ky. 1848 ). See Prescott v. Prescott's Heirs, 49 Ky. 56 , 1849 Ky. LEXIS 18 ( Ky. 1849 ); Lachland's Heirs v. Downing's Ex'rs, 50 Ky. 32 , 1850 Ky. LEXIS 9 ( Ky. 1850 ); Johnson v. Johnson, 59 Ky. 331 , 1859 Ky. LEXIS 109 ( Ky. 1859 ); Moran v. Dillehay, 71 Ky. 434 , 1871 Ky. LEXIS 78 ( Ky. 1871 ); Breckinridge v. Denny, 71 Ky. 616 (1872); Bradley v. Skilman, 3 Ky. L. Rptr. 734 ; Williams v. Duncan, 92 Ky. 125 , 17 S.W. 330, 13 Ky. L. Rptr. 389 , 1891 Ky. LEXIS 134 ( Ky. 1891 ); Pruitt v. Holland, 92 Ky. 641 , 18 S.W. 852, 13 Ky. L. Rptr. 867 , 1892 Ky. LEXIS 36 ( Ky. 1892 ).

Devise to testator’s son, with provision that if he should die without issue the property should go to testator’s unmarried daughters, “but if he should die with heirs” it was to go to them, created an estate tail which was converted by law into an estate in fee. Deboe v. Lowen, 47 Ky. 616 , 1848 Ky. LEXIS 148 ( Ky. 1848 ).

Devise to trustees for use of testator’s daughters “and their posterity forever” created a fee simple. Breckinridge v. Denny & Faulkner, 71 Ky. 523 , 1871 Ky. LEXIS 93 ( Ky. 1871 ).

5.Estates Tail.
6.— Conversion to Fee Simple.

Devise or conveyance to person and the “heirs of his body,” or similar words, which would at common law have created an estate tail, was by this section converted into a fee-simple estate. McGennis v. McGennis, 29 S.W. 333, 16 Ky. L. Rptr. 598 (1895). See Sanders v. Wade, 30 S.W. 656, 17 Ky. L. Rptr. 205 (1895); Hood v. Dawson, 98 Ky. 285 , 33 S.W. 75, 17 Ky. L. Rptr. 880 , 1895 Ky. LEXIS 60 ( Ky. 1895 ); Jones v. Mason, 53 S.W. 5, 21 Ky. L. Rptr. 842 , 1899 Ky. LEXIS 335 (Ky. Ct. App. 1899); Dulaney v. Dulaney, 79 S.W. 195, 25 Ky. L. Rptr. 1659 (1904); Marshall v. Walker, 80 S.W. 1132, 26 Ky. L. Rptr. 199 (1904); Edwards v. Walesby, 98 S.W. 306, 30 Ky. L. Rptr. 251 , 1906 Ky. LEXIS 31 5 (Ky. Ct. App. 1906); Hall v. Moore, 105 S.W. 414, 32 Ky. L. Rptr. 56 (1907); Lawson v. Todd, 129 Ky. 132 , 110 S.W. 412, 33 Ky. L. Rptr. 557 , 1908 Ky. LEXIS 143 ( Ky. 1908 ); Manteuffel v. Grieb, 119 S.W. 739 ( Ky. 1909 ); Taggart's Ex'r v. Taggart, 121 S.W. 693 ( Ky. 1909 ); Lawrence v. Carrithers, 140 Ky. 6 , 130 S.W. 786, 1910 Ky. LEXIS 147 ( Ky. 1910 ); Pelphrey v. Williams, 142 Ky. 485 , 134 S.W. 884, 1911 Ky. LEXIS 227 ( Ky. 1911 ); Dotson v. Kentland Coal & Coke Co., 150 Ky. 6 0, 150 S.W. 6, 1912 Ky. LEXIS 838 ( Ky. 1912 ); Parrish v. Burkley, 152 Ky. 730 , 154 S.W. 11, 1913 Ky. LEXIS 729 ( Ky. 1913 ); Bonnycastle v. Lilly, 153 Ky. 834 , 156 S.W. 874, 1913 Ky. LEXIS 925 ( Ky. 1913 ) (Ky. 1913); Wright v. Curry, Tunis & Norwood, 163 Ky. 683 , 174 S.W. 1, 1915 Ky. LEXIS 261 ( Ky. 1915 ); Moorehead v. Gibson, 168 Ky. 102 , 181 S.W. 977, 1916 Ky. LEXIS 521 ( Ky. 1916 ); Belcher v. Ramey, 173 Ky. 784 , 191 S.W. 520, 1917 Ky. LEXIS 521 ( Ky. 1917 ); Kirby v. Hulette, 174 Ky. 257 , 192 S.W. 63, 1917 Ky. LEXIS 187 ( Ky. 1917 ); Smith v. Smith, 180 Ky. 174 , 202 S.W. 314, 1918 Ky. LEXIS 31 ( Ky. 1918 ); Scearce v. King, 186 Ky. 507 , 217 S.W. 366, 1920 Ky. LEXIS 55 ( Ky. 1920 ); Wilson v. Woodward, 190 Ky. 326 , 227 S.W. 446, 1921 Ky. LEXIS 432 ( Ky. 1921 ); Massingale v. Parker, 191 Ky. 515 , 230 S.W. 932, 1921 Ky. LEXIS 340 ( Ky. 1921 ); Hughes v. Collins, 197 Ky. 589 , 247 S.W. 737, 1923 Ky. LEXIS 684 ( Ky. 1923 ); Cox v. Fink, 200 Ky. 219 , 254 S.W. 757, 1923 Ky. LEXIS 57 ( Ky. 1923 ); Jett v. Cheek, 201 Ky. 584 , 257 S.W. 1026, 1924 Ky. LEXIS 598 ( Ky. 1924 ); Wilson v. Morrill, 205 Ky. 257 , 265 S.W. 774, 1924 Ky. LEXIS 90 ( Ky. 1924 ); Williams v. Ohio Valley Banking & Trust Co., 205 Ky. 807 , 266 S.W. 670, 1924 Ky. LEXIS 246 (Ky. 1924); Barrett v. Ray, 206 Ky. 834 , 268 S.W. 534, 1925 Ky. LEXIS 1036 ( Ky. 1925 ); Brill v. Lynn, 207 Ky. 757 , 270 S.W. 20, 1925 Ky. LEXIS 177 ( Ky. 1925 ); Lilly v. Cox, 225 Ky. 355 , 9 S.W.2d 49, 1928 Ky. LEXIS 790 ( Ky. 1928 ); Kinnaird v. Farmers' & Merchants' Bank, 249 Ky. 661 , 61 S.W.2d 291, 1933 Ky. LEXIS 57 7 ( Ky. 1933 ); Simons v. Bowers, 258 Ky. 755 , 81 S.W.2d 604, 1935 Ky. LEXIS 246 ( Ky. 1935 ).

Where, except for operation of law, vesting of fee would be suspended indefinitely, the limitation was void and created a fee in last person who, under the law, was authorized to take it. Miller v. Miller, 151 Ky. 563 , 152 S.W. 542, 1913 Ky. LEXIS 513 ( Ky. 1913 ).

Devise to testator’s son, with provision that if he should die without issue the property should go to testator’s unmarried daughters, “but if he should die with heirs” it was to go to them, created an estate tail which was converted by law into an estate in fee. Bonnycastle v. Lilly, 153 Ky. 834 , 156 S.W. 874, 1913 Ky. LEXIS 925 ( Ky. 1913 ) ( Ky. 1913 ).

An estate tail which is converted by law into a fee simple becomes an absolute fee simple, and not a defeasible fee or executory devise. Scearce v. King, 186 Ky. 507 , 217 S.W. 366, 1920 Ky. LEXIS 55 ( Ky. 1920 ).

Where property was devised to A for life, then to B “and his children forever” without the right to dispose of it during his life or the life of his children and in the event B “should die childless” then to another, the interest devised to B was an unconditional fee-simple title by operation of this section and not a defeasible fee or a life estate. Wilson v. Morrill, 205 Ky. 257 , 265 S.W. 774, 1924 Ky. LEXIS 90 ( Ky. 1924 ).

Deed which conveyed land to husband and wife and the heirs of the wife “belonging to” the husband would have created an estate tail at common law, but under this section the estate created was a fee simple in the husband and wife, and their children had no interest under this deed. Combs v. Slone, 306 Ky. 419 , 208 S.W.2d 304, 1948 Ky. LEXIS 575 ( Ky. 1948 ).

Where granting and habendum clauses were in the usual language “heirs and assigns” which are words of limitation, the conveyance was converted into a fee-simple estate under this section, although, in the paragraph reciting the parties, the words “her heirs after her death” were used which might have been interpreted to convey a remainder estate to her children or descendants. Kentland Coal & Coke Co. v. Blankenship, 300 S.W.2d 570, 1957 Ky. LEXIS 463 ( Ky. 1957 ).

Where deed recited a conveyance to M “and her children” and later in the instrument reference was made to M “and her bodily heirs,” such terminology would have created what was once designated an estate tail which is converted into a fee simple. Franklin Real Estate Co. v. Music, 392 S.W.2d 66, 1965 Ky. LEXIS 267 ( Ky. 1965 ).

An estate tail which was converted by law into a fee simple became an absolute fee simple, and not a defeasible fee or executory devise. Breckinridge v. Denny, 71 Ky. 616 (1872).

7.Heirs Defined.

It is the settled rule in this state that the words “bodily heirs” and “heirs of the body” and other similar expressions are appropriate words of limitation and when used in a deed will be given their ordinary legal meaning, unless there be something in the instrument itself which shows that they were used in a contrary sense as “children” or words of purchase. Lawson v. Todd, 129 Ky. 132 , 110 S.W. 412, 33 Ky. L. Rptr. 557 , 1908 Ky. LEXIS 143 ( Ky. 1908 ). See Dotson v. Kentland Coal & Coke Co., 150 Ky. 60 , 150 S.W. 6, 1912 Ky. LEXIS 838 ( Ky. 1912 ); Moorehead v. Gibson, 168 Ky. 102 , 181 S.W. 977, 1916 Ky. LEXIS 521 ( Ky. 1916 ); Wilson v. Woodward, 190 Ky. 326 , 227 S.W. 446, 1921 Ky. LEXIS 432 ( Ky. 1921 ).

The terms “bodily heirs,” “heirs of the body,” “heirs lawfully begotten of the body,” and other similar ones, as applying to a grantee in a deed or a devise in a will, at common law created an entailed estate giving to the grantee or devisee a life estate and a similar estate to his lineal descendants, and so on in a successive line as long as there were such lineal descendants, but in 1796 the legislature of Kentucky enacted what became this section which converted such estates into estates in fee simple, unless from the language found in the whole instrument, deed or will, it appeared with reasonable clearness that it was the intention of the creator of the estate that a different construction prevail. Wilson v. Woodward, 190 Ky. 326 , 227 S.W. 446, 1921 Ky. LEXIS 432 ( Ky. 1921 ).

8.Children Defined.

“Children” is generally held to be a word of purchase, and to embrace immediate descendants only. Bowe v. Richmond, 109 S.W. 359, 33 Ky. L. Rptr. 173 (1908).

The word “children” may be construed to mean and include grandchildren. Whittaker v. Fitzpatrick, 268 Ky. 120 , 103 S.W.2d 670, 1937 Ky. LEXIS 409 ( Ky. 1937 ).

9.Bodily Heirs.

Conveyance to woman and “her bodily heirs” created an estate tail which was by law converted into a fee simple, since nothing in deed indicated the words “bodily heirs” were used in the sense of “children” as words of purchase. Jones v. Mason, 53 S.W. 5, 21 Ky. L. Rptr. 842 , 1899 Ky. LEXIS 335 (Ky. Ct. App. 1899).

The words “offsprings of her body” used in the sense of bodily heirs or issue created a fee simple. Massingale v. Parker, 191 Ky. 515 , 230 S.W. 932, 1921 Ky. LEXIS 340 ( Ky. 1921 ).

Conveyance to grantee and “bodily heirs or issue of her body” were intended as words of limitation and created an estate tail at common law, converted by this section into a fee but subject to imposed valid qualifying limitations the same as a common law created fee. Hughes v. Collins, 197 Ky. 589 , 247 S.W. 737, 1923 Ky. LEXIS 684 ( Ky. 1923 ).

A conveyance to “Cora White and her bodily heirs” created, under this section, a fee in the first taker and not a life estate with remainder to her children. McGinnis v. Hood, 289 Ky. 669 , 159 S.W.2d 1018, 1942 Ky. LEXIS 619 ( Ky. 1942 ).

Where deed or devise fails to show by other qualifying or designating language that the words “bodily heirs” were used in sense of “children” or “grandchildren,” they will not be construed as being used in that sense or as words of purchase, but rather as words of limitation only, where different intent is not disclosed in instrument. McGinnis v. Hood, 289 Ky. 669 , 159 S.W.2d 1018, 1942 Ky. LEXIS 619 ( Ky. 1942 ).

Where deed to husband and wife provided that in the event of the death of the husband before that of the wife, the property conveyed should revert to and become the property of the wife and “her bodily heirs” and the deed contained no words which could have the effect of giving more than the technical meaning to “her bodily heirs,” the words were not words of purchase but of limitation and the husband and wife received a fee-simple estate. Nunn v. Wright, 303 Ky. 288 , 197 S.W.2d 439, 1946 Ky. LEXIS 839 ( Ky. 1946 ).

Deed from father to daughter, conveying land to “the grantee and her bodily heirs, and assigns, forever,” was governed by this section, and so daughter took a fee-simple estate, as against contention that she had only a life estate with remainder to children, or a joint estate with children. Sallee v. Warner, 306 Ky. 846 , 209 S.W.2d 491, 1948 Ky. LEXIS 663 ( Ky. 1948 ).

Deed conveyed a fee where grantors conveyed to grantee and her bodily heirs as party of second part but in the habendum wrote “unto the party of the second part, their heirs and assigns forever.” Gearheart v. Little, 313 Ky. 116 , 230 S.W.2d 472, 1950 Ky. LEXIS 826 ( Ky. 1950 ).

10.Life Estates.

A deed was construed as falling under KRS 381.090 and not under this section and grantees took only a life estate. Jones v. Carlin, 96 S.W. 885, 29 Ky. L. Rptr. 1077 (1906). See Crawley v. Crawley, 231 Ky. 831 , 22 S.W.2d 268, 1929 Ky. LEXIS 366 ( Ky. 1929 ).

Deed to “Caroline Bowe and her children by A. J. Bowe” conveyed to the mother a life estate, with remainder to her children by A. J. Bowe, including children born after execution of deed. Bowe v. Richmond, 109 S.W. 359, 33 Ky. L. Rptr. 173 (1908).

Deed conveying land to grantee “to have and hold the same her lifetime, then to her bodily heirs,” conveyed a life estate to grantee and a fee simple to her bodily heirs. Eggner v. Hovekamp, 134 Ky. 224 , 119 S.W. 818, 1909 Ky. LEXIS 373 ( Ky. 1909 ). See Crawley v. Crawley, 231 Ky. 831 , 22 S.W.2d 268, 1929 Ky. LEXIS 366 ( Ky. 1929 ).

Devise to son and his bodily heirs after his death, after death of testator’s wife, gave only a life estate to the son, subject to life estate of the widow of testator, with remainder in fee simple to bodily heirs of son at his death. Reeves v. Tomlin, 213 Ky. 547 , 281 S.W. 522, 1926 Ky. LEXIS 560 ( Ky. 1926 ).

Conveyance of man and wife to their daughter and “the heirs of her body begotten, their grandchildren,” conveyed life estate to daughter with remainder in fee simple to her children. Ely v. United States Coal & Coke Co., 243 Ky. 725 , 49 S.W.2d 1021, 1932 Ky. LEXIS 191 ( Ky. 1932 ).

In certain cases where the circumstances authorize it, parol proof may be offered to show that testator employed “bodily heirs” or similar phrases in the sense of “children,” so as to convert limiting words into words of purchase. Simons v. Bowers, 258 Ky. 755 , 81 S.W.2d 604, 1935 Ky. LEXIS 246 ( Ky. 1935 ).

Although devise was to son and “the heirs of his body,” a consideration of entire will gave son only a life estate with remainder to his living children and children of deceased daughter. Whittaker v. Fitzpatrick, 268 Ky. 120 , 103 S.W.2d 670, 1937 Ky. LEXIS 409 ( Ky. 1937 ).

Where will gives devisee an estate for life, the devisee takes a life estate by will and, at the latter’s death, to his issue if any. Mansur v. Security Trust Co., 279 Ky. 453 , 130 S.W.2d 768, 1939 Ky. LEXIS 275 ( Ky. 1939 ).

Where owner of property prepared in his own handwriting a deed purporting to convey property to his wife and his heirs, the latter being named as grantees by the phrase “Matilda Combs and J. W. Combs’ heirs, of the second part,” and the granting, habendum and warranty clauses conveyed the land to “the party of the second part and to his heirs and assigns forever,” the wife took only a life estate, with a remainder to the children of the grantor. Combs v. Combs, 294 Ky. 89 , 171 S.W.2d 13, 1943 Ky. LEXIS 391 ( Ky. 1943 ).

There was no conversion of an estate tail to a fee simple where will bequeathed income from trust to daughter’s children and such of descendants per stirpes as may be born within her lifetime, since it was obvious that the words “and such of their descendants per stirpes as may be born within her lifetime” were limited to (1) stirpes and (2) to those born during the daughter’s lifetime so daughter took a life estate with the remainder in her three (3) daughters. Collis v. Citizens Fidelity Bank & Trust Co., 314 Ky. 15 , 234 S.W.2d 164, 1950 Ky. LEXIS 1011 ( Ky. 1950 ).

Devise to named children “and their children” then to testatrix’s brothers and sisters “and their children” was a devise of life estate to brothers and sisters with remainders in fee and was not converted to a fee simple in the brothers and sisters. Johnson v. Houchins, 330 S.W.2d 114, 1959 Ky. LEXIS 185 ( Ky. 1959 ).

Since deeds will be interpreted so as to make all of their provisions operative if the terms are susceptible of such an interpretation and one (1) clause in a deed will not be given more weight than another, where granting clause was to grantee, his bodily heirs and assigns but habendum clause read to have and to hold the same to grantee, his bodily heirs and assigns forever and the description read to grantee to sue as long as he live and at his natural death then go to his bodily heirs, grantee took a life estate with remainder to his children; and thus KRS 381.090 should apply rather than this section. Bartley v. Potter, 334 S.W.2d 353, 1960 Ky. LEXIS 229 ( Ky. 1960 ).

Codicil that provided “In stating Robert Stanley Harmon (the grandchild referred to in the will) or Robert Owens Moss’ (son of testator) children are to heir his property heired from me does not mean said properties are entitled to said heirs” did not have the effect of revoking portions of will creating life estates in children and converting them into fee-simple estates. Harmon v. Moss, 342 S.W.2d 528, 1961 Ky. LEXIS 387 ( Ky. 1961 ).

Cited:

Wallace v. Haven, 278 Ky. 613 , 129 S.W.2d 153, 1939 Ky. LEXIS 478 ( Ky. 1939 ).

Research References and Practice Aids

Kentucky Law Journal.

Roberts, Kentucky Decisions on Future Interests, 1933-1937, 26 Ky. L.J. 269 (1938).

Henard, Distribution of Property Devised or Conveyed to One and His Children, 28 Ky. L.J. 331 (1940).

Roberts, Kentucky Decisions on Future Interests (1938-1953), 42 Ky. L.J. 3 (1953).

Northern Kentucky Law Review.

Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 51 (1979).

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

381.080. Construction of “without heirs,” “without children” or “issue” in deed or will.

Unless a different purpose is plainly expressed in the instrument, every limitation in a deed or will contingent upon a person dying “without heirs,” or “without children” or “issue,” or other words of like import, shall be construed a limitation to take effect when such person dies, unless the object on which the contingency is made to depend is then living, or, if a child of his body, such child is born within ten (10) months next thereafter.

History. 2344.

NOTES TO DECISIONS

1.Construction.

This section means that unless a different purpose is expressed, every limitation in a deed or will contingent upon a person dying without issue shall take effect when this person shall die, unless the issue (the object on which the contingency is made to depend) is then living, or if a child of his body be born within ten (10) months thereafter. Harvey v. Bell, 118 Ky. 512 , 81 S.W. 671, 26 Ky. L. Rptr. 381 , 1904 Ky. LEXIS 69 ( Ky. 1904 ).

This section simply abolishes the common-law rule by which the words referred to were construed to refer to an indefinite failure of issue, and makes the estate to depend only on the failure of issue at the death of the person named; it was so construed by the Court of Appeals at the time of the enactment. Harvey v. Bell, 118 Ky. 512 , 81 S.W. 671, 26 Ky. L. Rptr. 381 , 1904 Ky. LEXIS 69 ( Ky. 1904 ).

Courts may invoke the transposition of employed words and phrases so as to bring them in accord with the evident intention of those employing them and to supply glaringly omitted words so as to make the meaning clear. Kentucky Real Estate Board v. Smith, 272 Ky. 313 , 114 S.W.2d 107, 1938 Ky. LEXIS 117 ( Ky. 1938 ).

The common rule that, where testator first devises a fee-simple title, he cannot later in the same will limit the fee by other dispositions upon the theory that, having disposed of the entire estate by an absolute devise, nothing remained in the testator upon which a limitation could be placed, has been departed from because it conflicts with the cardinal rule of construction of wills, that the court will look to the four (4) corners of the will to determine the intent of the testator and will give due weight to each provision. Johnson v. Foley, 302 Ky. 848 , 196 S.W.2d 733, 1946 Ky. LEXIS 772 ( Ky. 1946 ).

2.Application.

Where the instrument disposes of personal property, the words “dying without issue,” and others of similar import, refer to a death of the first taker before that of the one from whom he obtains the property, unless a different intention appears from the entire language of the instrument. Whitlow's Adm'r v. Saunders' Adm'r, 237 Ky. 842 , 36 S.W.2d 659, 1931 Ky. LEXIS 879 ( Ky. 1931 ).

Where the intention of the testator cannot be ascertained from the will, this section is not applicable and it is presumed that the phrase “dying without issue” where personal property is involved refers to such death before the death of the testator; but when real estate is involved, it is presumed that the phrase means death at any time without issue and where the real and personal property are not separated, but are devised as a whole, both classes will be governed by the real estate rule. Prewitt v. Prewitt's Ex'rs, 303 Ky. 772 , 199 S.W.2d 435, 1947 Ky. LEXIS 550 ( Ky. 1947 ).

3.Without Children — Meaning.

The rule of construction is technical, and is to be applied only when there is no period to which the words “dying without children” can be reasonably referred, and in the absence of something in the will evidencing a contrary intent; rules of construction are but means of ascertaining the testator’s intention, and when this is apparent from the whole will, it must be enforced. Duncan v. Duncan, 175 Ky. 253 , 194 S.W. 328, 1917 Ky. LEXIS 318 ( Ky. 1917 ).

The words “should they die before her death” have the same legal effect as “should she die without children.” Wallen v. Nicely, 222 Ky. 825 , 2 S.W.2d 648, 1928 Ky. LEXIS 252 ( Ky. 1928 ).

Where will devised property to testator’s son and daughters as tenants in common, with provision that upon death of any of devisees “without issue” his interest should pass to survivors, the phrase “without issue” meant without surviving issue. Sipes v. Boehmer, 291 Ky. 824 , 165 S.W.2d 807, 1942 Ky. LEXIS 326 ( Ky. 1942 ).

4.Limitations.

Where the devise is to a class, and the period of division is postponed, even where the devisees are not infants, the limitation as to dying without issue is confined to a death without issue before the period of division fixed by the will. Deering v. Skidmore, 282 Ky. 292 , 138 S.W.2d 471, 1940 Ky. LEXIS 162 ( Ky. 1940 ).

5.— Effect.

Will providing for disposition of property should devisee “die childless” or “die without issue” refers to devisee’s death at any time and not to his death before that of testator. Harvey v. Bell, 118 Ky. 512 , 81 S.W. 671, 26 Ky. L. Rptr. 381 , 1904 Ky. LEXIS 69 ( Ky. 1904 ). See Linton v. Hail, 201 Ky. 698 , 258 S.W. 111, 1924 Ky. LEXIS 624 ( Ky. 1924 ); Kimbrell v. Parmer, 202 Ky. 686 , 261 S.W. 11, 1924 Ky. LEXIS 777 ( Ky. 1924 ); Atkinson v. Kern, 210 Ky. 824 , 276 S.W. 977, 1925 Ky. LEXIS 789 ( Ky. 1925 ); Lightfoot v. Beard, 230 Ky. 488 , 20 S.W.2d 90, 1929 Ky. LEXIS 115 ( Ky. 1929 ); Littell v. Littell, 232 Ky. 251 , 22 S.W.2d 612, 1929 Ky. LEXIS 434 ( Ky. 1929 ); Walters v. Walters, 238 Ky. 290 , 37 S.W.2d 48, 1931 Ky. LEXIS 217 ( Ky. 1931 ); Ryan v. Ball, 267 Ky. 83 , 101 S.W.2d 187, 1937 Ky. LEXIS 273 ( Ky. 1937 ); Wilson v. Wilson, 270 Ky. 245 , 109 S.W.2d 607, 1937 Ky. LEXIS 57 ( Ky. 1937 ).

Instrument which purported to give estate, but with limitation over should devisees or grantee die without issue, or without heirs, gave the devisee or grantee a defeasible fee, subject to be defeated upon contingency of his death at any time without survival of any of the persons named upon whose survival the fee became absolute. DANIEL v. THOMPSON, 53 Ky. 533 , 1854 Ky. LEXIS 39 (Ky. Ct. App. 1854). See Sale v. Crutchfield, 71 Ky. 636 , 1871 Ky. LEXIS 112 ( Ky. 1871 ).

6.— No Intervening Estate.
7.— — Death of Devisee or Grantee at Any Time.

Where there is no intervening estate, and no other period to which the words “dying without issue” can be reasonably said to have reference, they are held, in the absence of something in the will showing a contrary purpose, to refer to the death of the devisee at any time without issue surviving him. Harvey v. Bell, 118 Ky. 512 , 81 S.W. 671, 26 Ky. L. Rptr. 381 , 1904 Ky. LEXIS 69 ( Ky. 1904 ). See Linton v. Hail, 201 Ky. 698 , 258 S.W. 111, 1924 Ky. LEXIS 624 ( Ky. 1924 ); Atkinson v. Kern, 210 Ky. 824 , 276 S.W. 977, 1925 Ky. LEXIS 789 ( Ky. 1925 ); Laughlin v. Neeley's Ex'x, 223 Ky. 656 , 4 S.W.2d 690, 1928 Ky. LEXIS 416 ( Ky. 1928 ); Wilson v. Wilson, 270 Ky. 245 , 109 S.W.2d 607, 1937 Ky. LEXIS 57 ( Ky. 1937 ).

Since the first enactment of this section, it uniformly has been held by the Court of Appeals that the limitation over took effect at the death of the immediately preceding taker (vendee or devisee) at any time, without being survived by any of the persons upon whose survival the fee became absolute. Kimbrell v. Parmer, 202 Ky. 686 , 261 S.W. 11, 1924 Ky. LEXIS 777 ( Ky. 1924 ).

The correct rule is that where an estate is given or conveyed directly to the devisee, without any intervening particular estate, and without anything in the instrument indicating a contrary purpose, limiting words such as “dies without heirs” have reference to the death of the taker at any time and devise to daughter but if she dies without heirs to go to brother gave a defeasible fee in land subject to be defeated by her death at any time without heirs or without issue where there was nothing in the will to indicate to the contrary. Atkinson v. Kern, 210 Ky. 824 , 276 S.W. 977, 1925 Ky. LEXIS 789 ( Ky. 1925 ).

Where there is no intervening estate and no other period to which the words “die without issue” can be reasonably said to have reference, they are held, in the absence of something in the will showing a contrary purpose, to create a defeasible fee, which may be defeated by the death of the devisee at any time without issue surviving him. Wallen v. Nicely, 222 Ky. 825 , 2 S.W.2d 648, 1928 Ky. LEXIS 252 ( Ky. 1928 ). See Laughlin v. Neeley's Ex'x, 223 Ky. 656 , 4 S.W.2d 690, 1928 Ky. LEXIS 416 ( Ky. 1928 ); Weinberg v. Werft, 309 Ky. 731 , 218 S.W.2d 398, 1949 Ky. LEXIS 764 ( Ky. 1949 ).

Where testatrix did not separate the personal and real property but devised it as a whole, and indicated no intention or purpose of making an absolute devise as to one class of property and limiting the interest devised as to another class, both personal and real property were devised together and must all be governed by the general rule that “dying without issue” had reference to death of devisee at any time. Ryan v. Ball, 267 Ky. 83 , 101 S.W.2d 187, 1937 Ky. LEXIS 273 ( Ky. 1937 ).

Testator devised land to A and B, providing that if A or B should die before reaching the age of 21 or without “issue of the body” his interest should pass to the other, and that if both A and B should die before reaching the age of 24 or without issue of the body their interest should revert to the testator’s estate. Thus, the will contemplated a definite failure of issue so that the property would revert only if A or B died without issue before reaching the age of 21 or both died without issue before reaching the age of 24. Lindsay v. Williams, 279 Ky. 749 , 132 S.W.2d 65, 1939 Ky. LEXIS 348 ( Ky. 1939 ).

The testator’s heirs at law who took by purchase under his will were to be determined as of the date of the death of his daughter and not as of the date of testator’s death where his will provided “If my daughter shall die without children or descendants then the estate herein devised for her use and benefit shall go to my heirs at law as the same would descend from me.” Mitchell v. Dauphin Deposit Trust Co., 283 Ky. 532 , 142 S.W.2d 181, 1940 Ky. LEXIS 385 ( Ky. 1940 ).

Devise to A, with contingent remainder to B if A dies without “heirs of the body” referred to failure of issue during life of A. Thus, though A survived B, the property was subject to disposal of B by will. Good Samaritan Hospital v. First Presbyterian Church, 286 Ky. 462 , 151 S.W.2d 78, 1941 Ky. LEXIS 295 ( Ky. 1941 ).

Where will devised property in trust for testatrix’s children with remainder to their issue, but with provision that if any child should die without issue his share should go to his surviving spouse for life, with remainder over to testatrix’s “descendants,” such remainder to become a fee simple upon the descendants reaching 21 years of age, the “descendants” who took the remainder were those who were living at the time of the death of the child of the testatrix, or were born within ten (10) months thereafter. Goodloe's Trustee & Adm'r v. Goodloe, 292 Ky. 494 , 166 S.W.2d 836, 1942 Ky. LEXIS 93 ( Ky. 1942 ).

Where there was no intervening estate, the provision concerning death without issue meant remainder to charitable institutions was contingent upon death of the devisees at any time and the devisees took a joint life estate with survivorship and power to encroach on corpus and dispose of corpus except by will, gift or wilful waste or consuming life estates with survivorship. St. Joseph Hospital, Lexington v. Dwertman, 268 S.W.2d 646, 1954 Ky. LEXIS 920 ( Ky. 1954 ), limited, Ashland Oil & Refining Co. v. Rice, 383 S.W.2d 369, 1964 Ky. LEXIS 42 ( Ky. 1964 ).

8.— Defeasible Fee.

A devise to granddaughter “to her sole and separate use, and shall be free from the control of any husband she may marry, with remainder over to my children . . . . . in case she should die without issue” gave granddaughter a defeasible fee, subject to be defeated by her death without issue living at the time of her death; the words “in case she should die without issue” refer to her death without leaving issue living at the time of her death. Louisville Trust Co. v. Maddox, 103 Ky. 253 , 44 S.W. 632 ( Ky. 1898 ).

Instrument which purports to give estate, but with limitations over should devisee or grantee die without issue, or without heirs, gives the devisee or grantee a defeasible fee, subject to be defeated upon contingency of his death at any time without survival of any of the persons named upon whose survival the fee became absolute. Louisville Trust Co. v. Erdman, 58 S.W. 814, 22 Ky. L. Rptr. 729 , 1900 Ky. LEXIS 704 ( Ky. 1900 ). See Walton v. Bohannon, 150 Ky. 486 , 150 S.W. 648, 1912 Ky. LEXIS 924 ( Ky. 1912 ); Duncan v. Duncan, 175 Ky. 253 , 194 S.W. 328, 1917 Ky. LEXIS 318 ( Ky. 1917 ); Murphy v. Murphy, 182 Ky. 731 , 207 S.W. 491, 1919 Ky. LEXIS 413 ( Ky. 1919 ); Kimbrell v. Parmer, 202 Ky. 686 , 261 S.W. 11, 1924 Ky. LEXIS 777 ( Ky. 1924 ); Atkinson v. Kern, 210 Ky. 824 , 276 S.W. 977, 1925 Ky. LEXIS 789 ( Ky. 1925 ); Wallen v. Nicely, 222 Ky. 825 , 2 S.W.2d 648, 1928 Ky. LEXIS 252 ( Ky. 1928 ); Laughlin v. Neeley's Ex'x, 223 Ky. 656 , 4 S.W.2d 690, 1928 Ky. LEXIS 416 ( Ky. 1928 ); Littell v. Littell, 232 Ky. 251 , 22 S.W.2d 612, 1929 Ky. LEXIS 434 ( Ky. 1929 ); Walters v. Walters, 238 Ky. 290 , 37 S.W.2d 48, 1931 Ky. LEXIS 217 ( Ky. 1931 ); Ryan v. Ball, 267 Ky. 83 , 101 S.W.2d 187, 1937 Ky. LEXIS 273 ( Ky. 1937 ); Wilson v. Wilson, 270 Ky. 245 , 109 S.W.2d 607, 1937 Ky. LEXIS 57 ( Ky. 1937 ).

Where the codicil to will clearly provided that in the event of the son’s death, at any time, leaving children, his children should take the land, the son took a defeasible fee, subject to be defeated by his death at any time without issue. Duncan v. Duncan, 175 Ky. 253 , 194 S.W. 328, 1917 Ky. LEXIS 318 ( Ky. 1917 ).

Considering entire will, there was a different purpose expressed in the instrument and it was the intention on part of testator not to give a defeasible fee to be defeated by death at any time without issue, and the devise over came within the exception provided in this section. Young v. Madison's Ex'r, 252 Ky. 99 , 66 S.W.2d 1, 1933 Ky. LEXIS 987 ( Ky. 1933 ).

Devise to husband so long as he remained single with remainder to be divided equally between nieces and their lawful heirs but with provision “what property they or either of them still hold at their death after their burial expenses shall have been satisfied or settled for, shall revert” evidently intended that the interest of the nieces would remain defeasible even after the death of the life tenant and where decedent owned a one-half (1/2) interest in land and cotenant petitioned for sale and division of proceeds, one half (1/2) the proceeds should have been paid into the court and reinvested until it could have been determined to whom the proceeds should ultimately go. Malone v. Jamison, 312 Ky. 249 , 227 S.W.2d 179, 1950 Ky. LEXIS 627 ( Ky. 1950 ).

9.Fee-Simple Estate.

Under will devising real estate to be equally divided between testator’s two (2) sons but to be held by them until the younger reached 30 years of age and should either die without issue then to the other and if both should die without issue property to revert to testator’s next heirs at law, each son took an absolute one-half (1/2) undivided interest subject to be defeated by death without living issue before the younger became 30 years of age and, when the younger son became 30 years of age, each had a fee-simple estate in an undivided one-half (1/2) interest. Deering v. Skidmore, 282 Ky. 292 , 138 S.W.2d 471, 1940 Ky. LEXIS 162 ( Ky. 1940 ).

Where parents executed deed conveying fee-simple title to real estate jointly to four (4) children, but deed reserved life estate in parents and also reserved right of parents to make absolute sale of real estate during their lives, provision of deed that if any of the children should die “without bodily issue” his interest should pass to the other children would be construed as referring to death of child before death of parents, the deed as a whole indicating that to be the intent of the grantors. Douglas v. Snow, 304 Ky. 805 , 202 S.W.2d 629, 1947 Ky. LEXIS 737 ( Ky. 1947 ), overruled, Witherspoon v. Whitherspoon, 402 S.W.2d 699, 1965 Ky. LEXIS 11 ( Ky. 1965 ).

10.— Intervening Estate.

The rule applicable where there is an intervening life estate, and a gift over upon death of the remainderman without issue, is that the limitation with reference to death without issue is restricted to the death of the remainderman before the termination of the life estate. However, the rule where there is no intervening estate is that the reference to death without issue means death at any time. Ashland Oil & Refining Co. v. Rice, 383 S.W.2d 369, 1964 Ky. LEXIS 42 ( Ky. 1964 ).

11.— — Death of Life Tenant.

Where an estate is devised to one for life, with remainder to another, but, if the remainderman should die without children or issue, then to a third person, the rule is that the words “die without children or issue” are restricted to the death of the remainderman before the termination of the particular estate. Harvey v. Bell, 118 Ky. 512 , 81 S.W. 671, 26 Ky. L. Rptr. 381 , 1904 Ky. LEXIS 69 ( Ky. 1904 ). See Duncan v. Duncan, 175 Ky. 253 , 194 S.W. 328, 1917 Ky. LEXIS 318 ( Ky. 1917 ).

Devise to woman and her children, but with provision that should children die before their mother then the property should go to other parties, gave the children a defeasible fee which might be defeated at any time by their death prior to death of mother. Wallen v. Nicely, 222 Ky. 825 , 2 S.W.2d 648, 1928 Ky. LEXIS 252 ( Ky. 1928 ).

Devise of remainder to granddaughter, but other heirs to take if granddaughter die “either before or after I do,” gave a defeasible fee contingent upon granddaughter dying without issue during life of life tenant. Perkins v. Clark, 242 Ky. 782 , 47 S.W.2d 705, 1932 Ky. LEXIS 356 ( Ky. 1932 ).

Where disposition of the property which is devised over is preceded by a prior estate for life or years, then the general rule is that the death without issue refers to a death occurring during the period of the intervening estate, such as before the death of the life tenant. Pegram v. Kaufman, 261 Ky. 50 , 86 S.W.2d 1042, 1935 Ky. LEXIS 586 ( Ky. 1935 ).

Where testator devised land to his wife for life and then over to his niece, but with provision in will: “If my niece should die without issues said real estate I bequeath to my lawful heirs,” the title of the niece ceased to be defeasible and became absolute on the death of wife of testator. Pegram v. Kaufman, 261 Ky. 50 , 86 S.W.2d 1042, 1935 Ky. LEXIS 586 ( Ky. 1935 ).

Devise of remainder in lands to children “for their own use and benefit for life if either should die without issue then the property must go to survivors and their heirs for life” gave remainder to children as a class, the members of the class not to be determined until death of mother who had a life estate in the property. Vittitow v. Keene, 265 Ky. 66 , 95 S.W.2d 1083, 1936 Ky. LEXIS 427 ( Ky. 1936 ). See Renaker v. Tanner, 260 Ky. 281 , 83 S.W.2d 54, 1935 Ky. LEXIS 397 ( Ky. 1935 ).

Where testator devised property to his daughter “to be held by her for and during her natural life, and then descend or go to my heirs and children unless she should leave surviving her heirs of her body, in which case her share shall go to her children so left surviving her,” testator’s other children took a vested remainder, vesting as of the date of testator’s death, subject to being defeated by the contingency that the daughter should leave issue at her death. Montgomery's Ex'r v. Northcutt, 292 Ky. 622 , 167 S.W.2d 317, 1942 Ky. LEXIS 140 ( Ky. 1942 ).

Where testator devised his property to his widow for life, with remainder to his daughter, with further provision that if daughter “shall predecease me, or die after me, without issue,” the estate should go to other persons, the contingent remainder to others could take effect only if the daughter died before the termination of the widow’s life estate, and if the daughter survived the widow her estate became an absolute fee; the fact that the will made the widow and daughter joint executrices, with power of sale but with no provision as to disposition of proceeds of sale, did not limit the daughter’s estate. Deitchman v. Woosley, 294 Ky. 186 , 171 S.W.2d 256, 1943 Ky. LEXIS 420 ( Ky. 1943 ).

Where deed from parents to daughter contained a clause retaining ownership and control in grantors until their death, “at which time the grantee shall become the sole owner, and in the event of grantee’s death, leaving no heirs, then the said property shall be equally divided between the remaining heirs of the grantors,” the words “without heirs” meant “without issue,” and referred to the grantee’s death without issue prior to death of the grantors, so when grantee survived the grantors, she acquired a fee-simple title. Mitchell v. Deegan, 301 Ky. 587 , 192 S.W.2d 715, 1946 Ky. LEXIS 523 ( Ky. 1946 ).

Where an estate is devised to one for life, with remainder to another, and with provision that if the remainderman dies without children or issue the estate shall go to another, the words “dies without children or issue” are restricted to the death of the remainderman before the life tenant. This rule also applies to estates created by deed. Pence v. Farris, 303 Ky. 97 , 196 S.W.2d 970, 1946 Ky. LEXIS 794 ( Ky. 1946 ).

Devise to wife, as long as she remains unmarried, jointly with daughter to enjoy the full benefits during their lifetime and in case of the death of both and there are no heirs blessed to her union then to be divided between three (3) charitable institutions, gave wife and daughter a joint life estate, since the reference was not to death prior to testator’s death but to death of wife and daughter at any time. St. Joseph Hospital, Lexington v. Dwertman, 268 S.W.2d 646, 1954 Ky. LEXIS 920 ( Ky. 1954 ), limited, Ashland Oil & Refining Co. v. Rice, 383 S.W.2d 369, 1964 Ky. LEXIS 42 ( Ky. 1964 ).

The words “I give, devise and bequeath all the rest, residue and remainder of my real estate both real and personal to my wife to have and to hold so long as she lives or remains my widow and on her death to be divided equally between my three (3) children and in the case any one of my children shall die without issue then the estate to be divided equally between the heirs of my body” gave the three (3) children a defeasible fee which, when they all survived their mother, became an indefeasible fee-simple title to an undivided one third (1/3) of the estate. Ashland Oil & Refining Co. v. Rice, 383 S.W.2d 369, 1964 Ky. LEXIS 42 ( Ky. 1964 ).

12.— Undisposed Remainder.

Where will gives devisee an estate for life and, at the latter’s death, to his issue, if any, but makes no disposition in case devisee dies without issue, the undisposed remainder descends as intestate property of the testator, and where devisee is sole heir of testator, he may dispose of fee by his will, if he dies without issue. Mansur v. Security Trust Co., 279 Ky. 453 , 130 S.W.2d 768, 1939 Ky. LEXIS 275 ( Ky. 1939 ).

Research References and Practice Aids

Kentucky Law Journal.

Roberts, Kentucky Decisions on Future Interests, 1933-1937, 26 Ky. L.J. 269 (1938).

Roberts, Kentucky Decisions on Future Interests (1938-1953), 42 Ky. L.J. 3 (1953).

Matthews, Kentucky Developments in 1954: Personal and Real Property, Future Interests and Trusts, 44 Ky. L.J. 37 (1955).

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

381.090. Construction of “estate for life, remainder to heirs.”

If any estate is given by deed or will to any person for his life, and after his death to his heirs, or the heirs of his body, or his issue or descendants, such estate shall be construed to be an estate for life only in such person, and a remainder in fee simple in his heirs, or the heirs of his body, or his issue or descendants.

History. 2345.

NOTES TO DECISIONS

1.Construction.

The common-law rule that where one conveys a life estate to another with remainder to the heirs of the grantor they take as reversioners, and the grantor being himself the reversioner, after making such limitation may grant the reversion, is not affected by this section, as the heirs therein referred to are the heirs of the grantee and not those of the grantor. Mayes v. Kuykendall, 112 S.W. 673 ( Ky. 1908 ). See Fidelity & Columbia Trust Co. v. Williams, 268 Ky. 671 , 105 S.W.2d 814, 1937 Ky. LEXIS 512 ( Ky. 1937 ).

The common-law rule that, where one conveys a life estate to another with remainder to the heirs of the grantor, they take as reversioners, and the grantor being himself the reversioner, after making such limitation may grant the reversion, is not affected by this section. Pewitt v. Workman, 289 Ky. 459 , 159 S.W.2d 21, 1942 Ky. LEXIS 582 ( Ky. 1942 ).

The “heirs” referred to in this section are the heirs of the grantee and not those of the grantor. Pewitt v. Workman, 289 Ky. 459 , 159 S.W.2d 21, 1942 Ky. LEXIS 582 ( Ky. 1942 ).

If the intention of the parties is apparent from the examination of the deed “from its four corners” without regard to its technical and formal divisions, it will be given effect even though, in so doing, technical rules of construction will be violated. Hays v. Kentucky West Virginia Gas Co., 290 Ky. 174 , 160 S.W.2d 376, 1942 Ky. LEXIS 357 ( Ky. 1942 ).

The rule that an habendum creating an estate contradictory or repugnant to that given in the granting clause must be rejected is not a rule of property, but is merely a rule of construction, which will be resorted to only where the court cannot determine which of the clauses was intended to be controlling. Hays v. Kentucky West Virginia Gas Co., 290 Ky. 174 , 160 S.W.2d 376, 1942 Ky. LEXIS 357 ( Ky. 1942 ).

2.Successors and Assigns.

The use of the words “successors and assigns” in the granting clause of a deed to a corporation does not amount to the express grant of a fee. Sherman v. Petroleum Exploration, 280 Ky. 105 , 132 S.W.2d 768, 1939 Ky. LEXIS 86 ( Ky. 1939 ).

3.Devisee and His Children.

Where there is nothing in a deed or will to show a contrary purpose, an estate deeded or devised to a man and his children is a life estate to the first taker, with remainder to the children; however, even though devise read to my son and his children, it was clear from other provisions of the will that testator knew the language to employ to pass a life estate if he so desired and since he had imposed restraint on alienation of the land in expectation that he had conveyed a fee to his children and since son was required to pay certain sums to his sisters, the devise to the son was a fee-simple estate. Harkness v. Lisle, 132 Ky. 767 , 117 S.W. 264, 1909 Ky. LEXIS 149 ( Ky. 1909 ).

Where a devise is to a parent and his or her children, the parent receives a life estate with remainder vesting in the children unless there is something in the will showing a contrary intention, and if that contrary intention appears, then the added clause “and their children” is regarded as meaning heirs and as limiting the estate and creating an estate tail, which is converted by law into a fee-simple estate under KRS 381.070 . Johnson v. Houchins, 330 S.W.2d 114, 1959 Ky. LEXIS 185 ( Ky. 1959 ).

4.Devisee and His Bodily Heirs After His Death.

Devise to son and his bodily heirs after his death, after death of testator’s wife, gave only a life estate to the son, subject to life estate of the widow of testator, with remainder in fee simple to bodily heirs of son at his death. Reeves v. Tomlin, 213 Ky. 547 , 281 S.W. 522, 1926 Ky. LEXIS 560 ( Ky. 1926 ).

5.Devise for Life with Remainder Over.

A devise of conveyance to one for life and remainder to his heirs or his issue gives the devisee or grantee a life estate and the fee to his heirs or his issue. Atkins v. Baker, 112 Ky. 877 , 66 S.W. 1023, 23 Ky. L. Rptr. 2224 , 1902 Ky. LEXIS 233 ( Ky. 1902 ). See Adair v. Adair's Trustee, 99 S.W. 925, 30 Ky. L. Rptr. 857 (1907); Clubb v. King, 99 S.W. 935, 30 Ky. L. Rptr. 830 (1907); Eggner v. Hovekamp, 134 Ky. 224 , 119 S.W. 818, 1909 Ky. LEXIS 373 ( Ky. 1909 ); Thompson v. Penn, 149 Ky. 158 , 148 S.W. 33, 1912 Ky. LEXIS 602 ( Ky. 1912 ); Harkness v. Meade, 149 Ky. 359 , 149 S.W. 823, 1912 Ky. LEXIS 623 ( Ky. 1912 ); Runyon v. Hatfield, 154 Ky. 171 , 157 S.W. 17, 1913 Ky. LEXIS 46 ( Ky. 1913 ); Brady v. Bardy, 158 Ky. 541 , 165 S.W. 655, 1914 Ky. LEXIS 642 ( Ky. 1914 ); Belcher v. Ramey, 173 Ky. 784 , 191 S.W. 520, 1917 Ky. LEXIS 521 ( Ky. 1917 ); Ratliffe v. Ratliffe, 182 Ky. 230 , 206 S.W. 478, 1918 Ky. LEXIS 359 ( Ky. 1918 ); Combs v. Fields, 211 Ky. 842 , 278 S.W. 137, 1925 Ky. LEXIS 979 ( Ky. 1925 ); Banzhoff v. Smith, 233 Ky. 737 , 26 S.W.2d 1034, 1930 Ky. LEXIS 652 ( Ky. 1930 ).

Where will devised property to one for life and then to remainderman “and his children forever,” and provided that remainderman could not dispose of property during his life or life of his children and, should remainderman die childless, property should go to another, it was held remainderman who survived life tenant took fee. Wilson v. Morrill, 205 Ky. 257 , 265 S.W. 774, 1924 Ky. LEXIS 90 ( Ky. 1924 ).

A devise to X for life, remainder on his death to his then living children, creates only a contingent remainder. Walker v. Irvine's Ex'r, 225 Ky. 699 , 9 S.W.2d 1020, 1928 Ky. LEXIS 855 ( Ky. 1928 ).

A devise to X for life, remainder to his bodily heirs, creates a contingent remainder, unless the term “bodily heirs” be construed to mean children. Walker v. Irvine's Ex'r, 225 Ky. 699 , 9 S.W.2d 1020, 1928 Ky. LEXIS 855 ( Ky. 1928 ).

A devise to X for life, remainder to his heirs, under this section creates a contingent remainder, since the heirs of X cannot be known until his death. Walker v. Irvine's Ex'r, 225 Ky. 699 , 9 S.W.2d 1020, 1928 Ky. LEXIS 855 ( Ky. 1928 ).

Devise to daughter with remainder to her then living children on her death created a reversion to testator and his heirs when contingent remainder did not vest and testator’s four (4) children took either by descent or the residuary clause in his will. Walker v. Irvine's Ex'r, 225 Ky. 699 , 9 S.W.2d 1020, 1928 Ky. LEXIS 855 ( Ky. 1928 ).

Where the devise was to daughter for life, then to her lawful heirs, son of the daughter, as a contingent remainderman, could mortgage his contingent interest. Hurst v. Russell, 257 Ky. 78 , 77 S.W.2d 355, 1934 Ky. LEXIS 508 ( Ky. 1934 ).

Where the devise was to daughter for life, then to her lawful heirs, the daughter took a life estate with a contingent remainder in her heirs. Hurst v. Russell, 257 Ky. 78 , 77 S.W.2d 355, 1934 Ky. LEXIS 508 ( Ky. 1934 ).

Where the devise was to the daughter for life, then to her lawful heirs, the daughter’s sons took under the will and not as heirs of their mother. Hurst v. Russell, 257 Ky. 78 , 77 S.W.2d 355, 1934 Ky. LEXIS 508 ( Ky. 1934 ).

Devise to wife, and at her death to her niece during her life and at her death to her “bodily heirs,” gave the children of the niece a contingent remainder and not a vested remainder and, on the death of the niece, the fee vested in her children then living and her grandchildren per stirpes and not per capita. Clark v. McGrann, 274 Ky. 1 , 117 S.W.2d 1021, 1938 Ky. LEXIS 216 ( Ky. 1 938).

Where will gives devisee an estate for life and, at the latter’s death, to his issue, if any, but makes no disposition in case devisee dies without issue, the undisposed remainder descends as intestate property of the testator, and where devisee is sole heir of testator, he may dispose of fee by his will, if he dies without issue. Mansur v. Security Trust Co., 279 Ky. 453 , 130 S.W.2d 768, 1939 Ky. LEXIS 275 ( Ky. 1939 ).

Will giving residuary estate to widow, “during her life,” and upon her death to children in equal shares, created life estate in widow, and subsequent clause that widow could give any of children such sums as she thought proper did not enlarge her estate, but merely permitted her to make advancements to children up to the amount of their ultimate shares. Pfeiffer v. Gates, 281 Ky. 445 , 136 S.W.2d 542, 1940 Ky. LEXIS 47 ( Ky. 1940 ).

Where testator devised property to his daughter “to be held by her for and during her natural life, and then descend or go to my heirs and children unless she should leave surviving her heirs of her body, in which case her share shall to her children so left surviving her,” testator’s other children took a vested remainder, vesting as of the date of testator’s death, subject to being defeated by the contingency that the daughter should leave issue at her death. Montgomery's Ex'r v. Northcutt, 292 Ky. 622 , 167 S.W.2d 317, 1942 Ky. LEXIS 140 ( Ky. 1942 ).

Where a will stated “I bequeath my grandson’s interest to him and at his death to his heirs and if he should die without heirs I will his interest in my estate to my other grandchildren that I may have at the time,” the grandson was vested with a life estate with the remainder in fee simple in the heirs of his body if any survive him. Cheuvront v. Haley, 444 S.W.2d 734, 1969 Ky. LEXIS 222 ( Ky. 1969 ).

Where a will provided for a daughter of the testatrix a life estate, with remainder to the heirs of her body, this did not create an estate tail, but her children, who were the devisees of the remainder, took an absolute estate under the law. Allen v. Terrell, 10 Ky. Op. 786, 1 Ky. L. Rptr. 336 , 1880 Ky. LEXIS 389 (Ky. Ct. App. Oct. 21, 1880).

6.Right of Dower.

Where there was a devise of only a life estate to a husband, his wife was not entitled to dower in it. Brady v. Bardy, 158 Ky. 541 , 165 S.W. 655, 1914 Ky. LEXIS 642 ( Ky. 1914 ).

The words “in trust to our said son during his life and then to his lawful heirs with no power to said son over the same or to sell or dispose of the same” conveyed a mere life estate to the son and the son’s widow was not entitled to dower. Bodkin v. Wright, 266 Ky. 798 , 100 S.W.2d 824, 1937 Ky. LEXIS 8 ( Ky. 1937 ).

7.Life Estate with Sale on Death.

Where will gave widow life estate in land, which land on her death should be sold and proceeds divided among children, a provision “if either of them be dead the share of such one to go to his or her heirs” referred to time of death of life tenant and under such will, a child took a fee subject to widow’s life estate, subject to being defeated upon his dying before death of widow. State Bank v. Rose's Adm'r, 219 Ky. 562 , 293 S.W. 1087, 1927 Ky. LEXIS 393 ( Ky. 1927 ).

8.Trust for Grantor’s Life, Remainder to Grantor’s Children.

Spendthrift trust whereby grantor’s land was conveyed to trustee for grantor’s life with provision that it should not be liable for his debts and that if effort was made to so subject it, it should go to his children, with remainder after grantor’s life going to children, carved out of grantor’s land two (2) estates: a life estate for grantor and a vested remainder to his children born or to be born. Lane v. Taylor, 287 Ky. 116 , 152 S.W.2d 271, 1941 Ky. LEXIS 499 ( Ky. 1941 ).

9.Grantee and His Children.

Where a conveyance is to a person and his “children,” such person receives life estate and does not receive the fee unless from the entire deed it appears the grantor used the word “children” in the technical sense of the word “heirs.” Belcher v. Ramey, 173 Ky. 784 , 191 S.W. 520, 1917 Ky. LEXIS 521 ( Ky. 1917 ).

Where a conveyance is to a person “and his children,” the person takes only a life estate with remainder to the children, unless it appears that the grantor used “children” in the sense of “heirs.” Where a conveyance is to a person “and the heirs of the body” or “and his bodily heirs,” the person takes a fee simple, unless it appears that the word “heirs” was used in the sense of “children,” in which case the person will take only a life estate. Combs v. Combs, 294 Ky. 89 , 171 S.W.2d 13, 1943 Ky. LEXIS 391 ( Ky. 1943 ).

10.Grantee and His Bodily Heirs and Assigns.

Deed created a life estate in grantee and not a common-law estate tail converted to a fee simple under KRS 381.070 , where granting clause conveyed to grantee and his bodily heirs and assigns but habendum clause specifically stated that grantee was to have and use the property “as long as he lived and at his natural death then to go to his bodily heirs.” Bartley v. Potter, 334 S.W.2d 353, 1960 Ky. LEXIS 229 ( Ky. 1960 ).

11.Grantee for Life.
12.— With Remainder Over.

Each of the children, as they came into being, became vested with their proportionate part of the remainder, since law favors vested rather than contingent remainders. Ratliffe v. Ratliffe, 182 Ky. 230 , 206 S.W. 478, 1918 Ky. LEXIS 359 ( Ky. 1918 ).

Interpreting a deed by the clear intent of grantor, the grantees too, only a life interest, with remainder to their children where deed read “to the party of the second part to him his lifetime then to the heirs of his body and assigns.” Ratliffe v. Ratliffe, 182 Ky. 230 , 206 S.W. 478, 1918 Ky. LEXIS 359 ( Ky. 1918 ).

Deed conveying land to son “during his natural life, then to his heirs, if any,” and, if no heirs, the land to revert to the grantor or to the grantor’s other children, gave the son a life estate and the son’s children contingent remainders. Louisville Cooperage Co. v. Rudd, 276 Ky. 721 , 124 S.W.2d 1063, 1938 Ky. LEXIS 562 ( Ky. 1938 ).

A deed conveying land to grantor’s niece for life and at her death to her bodily heirs conveyed a life estate to niece and the remainder in fee simple to her children. Lawson v. Asberry, 283 Ky. 390 , 141 S.W.2d 564, 1940 Ky. LEXIS 342 ( Ky. 1940 ).

Where grantor conveyed life estate to niece with remainder to her bodily heirs in consideration of niece’s promise to support him for life, and provided for reversion if niece failed to perform, and niece later reconveyed to grantor in consideration of cash and release from agreement, the grantor’s successor in title could assert the release agreement was effectual to deprive niece’s children of title to reconveyed property. Lawson v. Asberry, 283 Ky. 390 , 141 S.W.2d 564, 1940 Ky. LEXIS 342 ( Ky. 1940 ).

Where deed conveyed property to grantee for life, and upon her death to grantee’s son for his life, and upon his death “to go to his son, A. V. Combs, to be held for the children of said A. V. Combs,” the deed vested a present fee-simple title in the children of A. V. Combs, subject to the life estates of their grandfather and great-grandmother, notwithstanding that the children were named only in the habendum clause and not in the granting clause; the only interest acquired by A. V. Combs was that of trustee of a naked trust for his children. Combs v. Combs, 292 Ky. 445 , 166 S.W.2d 969, 1942 Ky. LEXIS 109 ( Ky. 1942 ).

Where owner of property prepared in his own handwriting a deed purporting to convey property to his wife and his heirs, the latter being named as grantees by the phrase, “Matilda Combs and J. W. Combs’ heirs, of the second part,” and the granting, habendum and warranty clauses conveyed the land to “the party of the second part and to his heirs and assigns forever,” the wife took only a life estate, with a remainder to the children of the grantor. Combs v. Combs, 294 Ky. 89 , 171 S.W.2d 13, 1943 Ky. LEXIS 391 ( Ky. 1943 ).

Where a deed stated that at the death of the party to whom the property was conveyed, the property would “descend” to certain heirs, the estate conveyed to that party was to continue for her life. East Kentucky Energy Corp. v. Niece, 774 S.W.2d 458, 1989 Ky. App. LEXIS 99 (Ky. Ct. App. 1989).

Bankruptcy trustee was permitted to sell a debtor’s interest in property where the interpretation of an entire document showed that a grantor intended to convey a life estate and remainder in certain property, despite fee simple language in the document. Johnson v. Fifth Third Bank, Inc. (In re Carnes), 2005 Bankr. LEXIS 5 (Bankr. E.D. Ky. Jan. 5, 2005).

13.— With Right to Sell for Reinvestment.

Where deed conveying land to life tenants, with remainder to their children, gave life tenants right to sell land for reinvestment, and provided that the “reinvestment is incumbent on the second parties” and that a purchaser was not required to see to the reinvestment of the proceeds of a sale, the fact that no reinvestment was made would not render a deed by the life tenants void ab initio, or deny protection to an innocent purchaser. Metropolitan Life Ins. Co. v. Chenault, 282 Ky. 252 , 138 S.W.2d 319, 1939 Ky. LEXIS 45 ( Ky. 1939 ).

14.Grantees Jointly for Life with Remainder Over.

Deed that passed property to grantees “jointly for and during their natural lives, without power to alienate or convey with remainder to their bodily heirs, forever” fell under this section and not under KRS 381.070 , and grantees took only a life estate. Jones v. Carlin, 96 S.W. 885, 29 Ky. L. Rptr. 1077 (1906). See Crawley v. Crawley, 231 Ky. 831 , 22 S.W.2d 268, 1929 Ky. LEXIS 366 ( Ky. 1929 ).

Deed to husband and wife and each of them severally of a one-half (1/2) interest in fee simple to be used by them jointly for and during their natural lives and at the death of either of them to his or her respective heirs at law absolutely in fee simple without right of dower or curtesy to the other but with a provision that grantees during their joint lives, or the survivor of them, could execute a deed of conveyance, release, lease or mortgage affecting his or her undivided one-half (1/2) interest conveyed only a life estate in their undivided halves of the whole land but with power to sell and convey their respective halves. Robertson's Guardian v. Robertson, 215 Ky. 14 , 284 S.W. 109, 1926 Ky. LEXIS 645 ( Ky. 1926 ).

Research References and Practice Aids

Cross-References.

Estate for life of another, disposition of, KRS 395.340 .

Tenant for life, rights of person leasing from upon death of, KRS 383.190 .

Kentucky Law Journal.

Roberts, Statutory and Common Law Definitions of Contingent Remainders, 30 Ky. L.J. 61 (1941).

Deep, Remainder to Grantor’s Heirs in Kentucky, 40 Ky. L.J. 218 (1952).

Roberts, Kentucky Decisions on Future Interests (1938-1953), 42 Ky. L.J. 3 (1953).

Vahlsing and Hudson, Inchoate Dower — An Idea Whose Time Is Past, 60 Ky. L.J. 671 (1972).

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

381.100. Contingent remainder.

A contingent remainder shall, in no case, fail for the want of a particular estate to support it.

History. 2346.

NOTES TO DECISIONS

1.Construction.

The law favors that construction of doubtful terms which creates a vested, rather than an uncertain, estate. Cox v. Anderson, 70 S.W. 839, 24 Ky. L. Rptr. 1081 (1902).

2.Application.

This section is applicable alone to land. Cox v. Anderson, 70 S.W. 839, 24 Ky. L. Rptr. 1081 (1902).

This section was not applicable where widow who was devised whole of husband’s estate real and personal without any restrictions as to its use took a fee-simple title and was not limited by clause “When she is done with it I give $1,000 to . . . . . Church.” Cox v. Anderson, 70 S.W. 839, 24 Ky. L. Rptr. 1081 (1902).

3.Remainder to Others of Class.

The contingent remainder in the other children of testator was not, under this section, defeated by the death of deceased child. Golladay v. Thomas, 111 S.W. 721, 33 Ky. L. Rptr. 829 (1908), overruled, Settle v. Vercamp, 485 S.W.2d 251, 1972 Ky. LEXIS 128 ( Ky. 1972 ).

Under this section, and the rule that the law favors the vesting of estates, the surviving children of testator took the share of a child who died without issue before the death of testator, where will provided that if a child died without children after death of testator, that share should go to the other children. Golladay v. Thomas, 111 S.W. 721, 33 Ky. L. Rptr. 829 (1908), overruled, Settle v. Vercamp, 485 S.W.2d 251, 1972 Ky. LEXIS 128 ( Ky. 1972 ).

Research References and Practice Aids

Kentucky Law Journal.

Roberts, Kentucky Decisions on Future Interests, 1933-1937, 26 Ky. L.J. 269 (1938).

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

Brady, “Expert Testimony in Kentucky”, see article for analysis of court standards regarding expert testimony, 25 N. Ky. L. Rev. 2 (1998).

381.110. Alienation or union of estate does not affect remainder.

The alienation of a particular estate on which a remainder depends, or the union of such estate with the inheritance by purchase or descent, shall not operate by merger or otherwise to defeat, impair or affect such remainder.

History. 2347.

NOTES TO DECISIONS

1.Merger.

There can be no merger where it is contrary to the intention of the parties or where outstanding rights of third parties intervene. Watson v. Trimble, 261 Ky. 253 , 87 S.W.2d 359, 1935 Ky. LEXIS 615 ( Ky. 1935 ).

2.Purchase of Life Estate by Remainderman.

Purchase of life estate of widow by third party, who had also purchased undivided seven-ninths (7/9) interest in remainder of estate, did not extend the security of a mortgage on third party’s interest in the remainder to include the present estate. Watson v. Trimble, 261 Ky. 253 , 87 S.W.2d 359, 1935 Ky. LEXIS 615 ( Ky. 1935 ).

The purchase of the life estate did not operate as a merger of that estate with the remainder interest already held by the third party. Watson v. Trimble, 261 Ky. 253 , 87 S.W.2d 359, 1935 Ky. LEXIS 615 ( Ky. 1935 ).

3.Precipitation of Remainders by Renunciation of Life Tenant.

Where will created residuary trust for widow for her benefit for life, with remainder to testator’s nieces and nephews, who were to receive residue if widow did not survive testator, widow’s renunciation of will under law precipitated the remainders the same as if the widow had died on the date of renunciation, and the residue could not be held in trust until widow’s death but was immediately distributable to the remaindermen, there being no contrary intention manifest in the will. Baldwin's Coex'rs v. Curry, 272 Ky. 827 , 115 S.W.2d 333, 1938 Ky. LEXIS 204 ( Ky. 1938 ).

4.Life Estate with Power to Sell.

Where testator devised farm to two unmarried daughters for life, with provision that “should they marry or die or break up housekeeping” they might sell the farm and should then divide the proceeds among themselves and the testator’s other children equally, the two daughters had only a life estate in the farm, with a qualified right to sell the farm upon the happening of any of the named contingencies and, where they did not exercise the privilege to sell, they had no remainder interest remaining at their deaths which could be passed by will. Upon death of life tenants the farm passed, under testator’s will, to the surviving children of the testator and to the issue of his deceased children. Corbin v. Manley, 291 Ky. 289 , 164 S.W.2d 394, 1942 Ky. LEXIS 223 ( Ky. 1942 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 51 (1979).

381.120. Joint tenants — Partition — Death of one.

Joint tenants may be compelled to make partition, and when a joint tenant dies, the joint tenant’s part of the joint estate, real or personal, shall descend to the joint tenant’s heirs, or pass by devise, or go to the joint tenant’s personal representative, subject to debts, curtesy, dower, or distribution.

History. 2348; 1998, ch. 267, § 1, effective July 15, 1998.

NOTES TO DECISIONS

1.Application.

This section is applicable only to divisible property. Martin v. Hall, 297 Ky. 537 , 180 S.W.2d 390, 1943 Ky. LEXIS 178 ( Ky. 1943 ).

This section was not applicable where it appeared from the will that should a class member predecease the life tenant the home farm was to be shared equally by the four eldest sons. Cromer v. Acton, 298 S.W.2d 20, 1957 Ky. LEXIS 361 ( Ky. 1957 ).

2.Controlling Law.

Although this section abolished tenancies by entirety in Kentucky, where a lot was in Tennessee the question was controlled by laws of that state and deed created tenancy by entirety. Traughber v. King, 235 Ky. 658 , 32 S.W.2d 8, 1930 Ky. LEXIS 431 ( Ky. 1930 ).

3.Who Are Joint Tenants.

The owner of a life estate and the owner of the remainder are not tenants in common or joint tenants. Avey v. Hogancamp, 172 Ky. 675 , 189 S.W. 917, 1916 Ky. LEXIS 256 ( Ky. 1916 ). See Miracle v. Miracle, 260 Ky. 624 , 86 S.W.2d 536, 1935 Ky. LEXIS 531 ( Ky. 1935 ).

4.Right of Survivorship.

The common-law right of survivorship in joint tenancy was abolished by this section but tenancy by entireties of husband and wife remained as at common law until the enactment of KRS 381.050 . McCallister v. Folden's Assignee, 110 Ky. 732 , 62 S.W. 538, 23 Ky. L. Rptr. 113 , 1901 Ky. LEXIS 126 ( Ky. 1901 ).

The right of survivorship in estates held in joint tenancy was abolished by this section, unless the case falls within the provisions of KRS 381.130 . Wirth v. Wirth's Guardian, 100 S.W. 298, 30 Ky. L. Rptr. 960 (1907). See Osborne v. Hughes, 219 Ky. 116 , 292 S.W. 748, 1927 Ky. LEXIS 292 ( Ky. 1927 ); Du Bois' Adm'r v. Shannon, 275 Ky. 516 , 122 S.W.2d 103, 1938 Ky. LEXIS 456 ( Ky. 1938 ).

When it is sought to establish that the estate of one (1) joint tenant passes the other by survivorship, the instrument relied on must make it clear that such was the purpose of the grantor or testator. Wirth v. Wirth's Guardian, 100 S.W. 298, 30 Ky. L. Rptr. 960 (1907). See Osborne v. Hughes, 219 Ky. 116 , 292 S.W. 748, 1927 Ky. LEXIS 292 ( Ky. 1927 ); Du Bois' Adm'r v. Shannon, 275 Ky. 516 , 122 S.W.2d 103, 1938 Ky. LEXIS 456 ( Ky. 1938 ).

This section intended to dispense with the common-law doctrine of survivorship among joint tenants. Gatto v. Gatto, 198 Ky. 569 , 250 S.W. 833, 1923 Ky. LEXIS 580 ( Ky. 1923 ).

This section is modified by KRS 381.050 , the latter providing, in effect, that if real estate be conveyed or devised to husband and wife, unless a right of survivorship is expressly provided for, there will be no mutual right to the entirety by survivorship between them. Francis v. Vastine, 229 Ky. 431 , 17 S.W.2d 419, 1929 Ky. LEXIS 786 ( Ky. 1929 ).

Where deed recited that the conveyance was “with survivorship” to the two (2) grantees “jointly and to the survivor”, the deed manifestly expressed the intent that the interest of the one first dying should belong to the other. This constituted a joint tenancy in accordance with this section. Sanderson v. Saxon, 834 S.W.2d 676, 1992 Ky. LEXIS 101 ( Ky. 1992 ).

5.Right of Partition.

Infants, and those whose shares are contingent, hold their joint interest subject to the right of the other joint owners to have the whole property partitioned at any time. Hartring's Ex'x v. Milward's Ex'r, 90 S.W. 260, 28 Ky. L. Rptr. 776 (1906). See Eldridge v. Embry, 158 Ky. 707 , 166 S.W. 223, 1914 Ky. LEXIS 700 ( Ky. 1914 ).

It is not necessary, for division of property, that there be unity of ownership either in time, title or possession, or that each vested interest be equal or alike. Eldridge v. Embry, 158 Ky. 707 , 166 S.W. 223, 1914 Ky. LEXIS 700 ( Ky. 1914 ).

This section secures to one (1) joint tenant a right of partition, although the other joint tenants are laboring under disability. Eldridge v. Embry, 158 Ky. 707 , 166 S.W. 223, 1914 Ky. LEXIS 700 ( Ky. 1914 ).

A partition will not be denied a joint owner unless it be made affirmatively to appear that the tract is indivisible without materially impairing its value. Leslie v. Sparks, 172 Ky. 303 , 189 S.W. 463, 1916 Ky. LEXIS 229 ( Ky. 1916 ).

Where land is jointly owned, a partition is the joint owner’s primary right, which will not be denied him unless it be made affirmatively to appear that the land is indivisible without materially impairing its value. Leslie v. Sparks, 172 Ky. 303 , 189 S.W. 463, 1916 Ky. LEXIS 229 ( Ky. 1916 ).

Courts will not deny the right of partition unless there is some impelling necessity therefor. Shelby v. Shelby, 192 Ky. 304 , 233 S.W. 726, 1921 Ky. LEXIS 54 ( Ky. 1921 ).

Where a father’s estate owed no debts, heirs’ suit to settle the estate must be treated as a suit to partition his land among heirs, and land could not be sold if one (1) heir was entitled to insist on division. Hagar v. Hagar, 276 Ky. 286 , 124 S.W.2d 45, 1939 Ky. LEXIS 508 ( Ky. 1939 ).

Public policy favors an actual partition rather than a sale, if it will not cause substantial injustice, even though one (1) or more of the owners prefer a sale to a partition. Tuggle v. Davis, 292 Ky. 27 , 165 S.W.2d 844, 1942 Ky. LEXIS 19 ( Ky. 1942 ).

All things being equal, as between a partition and a sale, a partition will be decreed. Kentucky Bell Corp. v. Moss, 311 Ky. 114 , 223 S.W.2d 580, 1949 Ky. LEXIS 1067 ( Ky. 1949 ).

All things being equal, the existing form of inheritance will not be disturbed nor will a person be compelled to sell his property against his will. Kentucky Bell Corp. v. Moss, 311 Ky. 114 , 223 S.W.2d 580, 1949 Ky. LEXIS 1067 ( Ky. 1949 ).

There are three basic statutes in Kentucky authorizing partition, this section as qualified by KRS 381.130 , 381.135 and 381.136 and these statutes supplement or are supplemented by the traditional jurisdiction of equity courts to decree partition as stated in subsection (16) of KRS 381.135 . Atkinson v. Kish, 420 S.W.2d 104, 1967 Ky. LEXIS 96 ( Ky. 1967 ).

When it was sought to establish that the estate of one (1) joint tenant passed the other by survivorship, the instrument relied on had to make it clear that such was the purpose of the grantor or testator. Truesdell v. White, 76 Ky. 616 , 1878 Ky. LEXIS 9 ( Ky. 1878 ).

6.Sale When Indivisible.

If it is made affirmatively to appear that a tract of land is indivisible without materially impairing its value, a sale as a whole should not be denied the other joint owners. Leslie v. Sparks, 172 Ky. 303 , 189 S.W. 463, 1916 Ky. LEXIS 229 ( Ky. 1916 ).

7.Notes.

A payment of whole note debt to one of two (2) joint payees would extinguish rights of both, and a surviving joint payee would hold for real owner. Perry v. Perry's Ex'r, 98 Ky. 242 , 32 S.W. 755, 17 Ky. L. Rptr. 868 , 1895 Ky. LEXIS 47 (Ky. Ct. App. 1895). (See KRS 355.3-116 .).

Where the survivor of two (2) joint payees of a note was the sole devisee of deceased joint payee, she was in fact the sole real owner. Perry v. Perry's Ex'r, 98 Ky. 242 , 32 S.W. 755, 17 Ky. L. Rptr. 868 , 1895 Ky. LEXIS 47 (Ky. Ct. App. 1895).

8.Joint Bank Account.

Where daughter was rendering services to father at time of creation of joint bank account with survivorship provision, daughter was entitled to account on father’s death on contract theory, even though on gift theory transaction might have been incomplete because father retained right to draw on account. Armstrong's Ex'r v. Morris Plan Industrial Bank, 282 Ky. 192 , 138 S.W.2d 359, 1940 Ky. LEXIS 154 ( Ky. 1940 ).

Where father changed bank accounts to joint accounts with daughter under written instrument giving each the right to draw on accounts and expressly providing that on death of one the accounts should become the absolute property of the survivor, the daughter was entitled to balance in accounts on father’s death, notwithstanding parol testimony that father intended merely to give daughter right to draw on accounts during his lifetime. Armstrong's Ex'r v. Morris Plan Industrial Bank, 282 Ky. 192 , 138 S.W.2d 359, 1940 Ky. LEXIS 154 ( Ky. 1940 ).

Where husband and wife placed their separate funds in a joint account, with express understanding with bank that either could draw on account, and that balance of account on death of either would pass to survivor, the wife was entitled to the account on the death of the husband. Bishop v. Bishop's Ex'x, 293 Ky. 652 , 170 S.W.2d 1, 1943 Ky. LEXIS 683 ( Ky. 1943 ).

9.Equal Division.

It was not error for court to direct commissioner to allot one (1) joint tenant’s share of land in division so that it would adjoin his home tract individually owned. Leslie v. Sparks, 172 Ky. 303 , 189 S.W. 463, 1916 Ky. LEXIS 229 ( Ky. 1916 ).

The law requires not only an equal division according to values but a division by which no share will be materially impaired in value. Leslie v. Sparks, 172 Ky. 303 , 189 S.W. 463, 1916 Ky. LEXIS 229 ( Ky. 1916 ).

A joint tenant cannot be required either to pay or to accept money as a compensation for any part of the tract in order that a division may be made. Strode v. Hardwick, 212 Ky. 36 , 278 S.W. 168, 1925 Ky. LEXIS 1068 ( Ky. 1925 ).

A partitioning of property in which one (1) tract would assume entire lien for street improvement, and two (2) other tracts would be released from their part of lien, was held unauthorized. Strode v. Hardwick, 212 Ky. 36 , 278 S.W. 168, 1925 Ky. LEXIS 1068 ( Ky. 1925 ).

Partition implies equality. Tuggle v. Davis, 292 Ky. 27 , 165 S.W.2d 844, 1942 Ky. LEXIS 19 ( Ky. 1942 ).

A joint tenant could not be required either to pay or to accept money as a compensation for any part of the tract in order that a division could be made. Wrenn v. Gibson, 90 Ky. 189 , 13 S.W. 766, 12 Ky. L. Rptr. 26 , 1890 Ky. LEXIS 68 ( Ky. 189 0).

10.Oil and Gas Interest.

It is uniformly recognized that oil and gas interests in land shown to contain probable deposits of those commodities in paying quantities are not susceptible of partition in kind. Union Gas & Oil Co. v. Wiedeman Oil Co., 211 Ky. 361 , 277 S.W. 323, 1924 Ky. LEXIS 26 ( Ky. 1924 ). See Warfield Natural Gas Co. v. Cassady, 266 Ky. 217 , 98 S.W.2d 495, 1936 Ky. LEXIS 633 ( Ky. 1936 ); Osborn v. Osborn, 267 Ky. 757 , 103 S.W.2d 262, 1937 Ky. LEXIS 381 ( Ky. 1937 ).

There may be a division of the surface with each allotted part subject to the oil and gas lease, whether it be entire or fractional, or there may be a division of the lease by selling it and distributing the proceeds. Union Gas & Oil Co. v. Wiedeman Oil Co., 211 Ky. 361 , 277 S.W. 323, 1924 Ky. LEXIS 26 ( Ky. 1924 ). See Warfield Natural Gas Co. v. Cassady, 266 Ky. 217 , 98 S.W.2d 495, 1936 Ky. LEXIS 633 ( Ky. 1936 ); Osborn v. Osborn, 267 Ky. 757 , 103 S.W.2d 262, 1937 Ky. LEXIS 381 ( Ky. 1937 ).

The usual statutes relating to the partitioning of real estate do not apply to oil and gas because of the insuperable difficulty in determining an equitable division of these mobile elements as may be done as between owners of the surface. Osborn v. Osborn, 267 Ky. 757 , 103 S.W.2d 262, 1937 Ky. LEXIS 381 ( Ky. 1937 ).

Five (5) of the six (6) joint owners of a tract of land could not, by conveying their undivided interests in the oil, gas, and minerals therein, affect adversely the rights of the sixth joint owner or require him against his will to sever his mineral rights from the surface. Laws v. Sturgill, 287 Ky. 37 , 151 S.W.2d 423, 1941 Ky. LEXIS 482 ( Ky. 1941 ).

11.Land Containing Coal or Mineral Rights.

Although five (5) of six (6) joint owners of land containing minerals preferred to divide the land, the other joint owner had the right, under KRS 389.020 to have the entire tract sold on ground of indivisibility. Laws v. Sturgill, 287 Ky. 37 , 151 S.W.2d 423, 1941 Ky. LEXIS 482 ( Ky. 1941 ).

The generally established rule in this state is that a partition may generally best be had of a tract of mineral land by a sale on the ground of indivisibility. Laws v. Sturgill, 287 Ky. 37 , 151 S.W.2d 423, 1941 Ky. LEXIS 482 ( Ky. 1941 ).

Where defendant owned surface rights in one (1) parcel of land and another person owned surface rights in adjoining parcel, and these two (2) persons together with plaintiff each owned an undivided one third (1/3) of mineral rights under both parcels, defendant’s conveyance to another of the parcel owned by him, which conveyance purported to include an absolute title to the mineral rights, and which conveyance was acquiesced in and consented to by the other joint owners of the mineral rights, constituted a partition of the mineral rights, and severed any interest defendant had in the mineral rights under the surface of the other parcel. Fugate v. Smith, 290 Ky. 115 , 160 S.W.2d 328, 1942 Ky. LEXIS 344 ( Ky. 1942 ).

Land containing minerals may be partitioned unless the mineral is so situated that a fair division of it cannot be made by dividing the surface of the land, but mere speculation as to presence of minerals in commercially valuable amount is not sufficient to defeat partition. Tuggle v. Davis, 292 Ky. 27 , 165 S.W.2d 844, 1942 Ky. LEXIS 19 ( Ky. 1942 ).

Where surface of land was capable of being divided fairly, the presence of coal seams and the probable presence of natural gas below the surface would not prevent partition in the absence of convincing proof that the coal and gas were capable of successful commercial development. Tuggle v. Davis, 292 Ky. 27 , 165 S.W.2d 844, 1942 Ky. LEXIS 19 ( Ky. 1942 ).

Where there had never been any attempt to lease or develop coal and gas, and evidence indicated that coal and gas were not present in sufficient quantities to justify commercial development, it was proper to decree physical partition. Tuggle v. Davis, 292 Ky. 27 , 165 S.W.2d 844, 1942 Ky. LEXIS 19 ( Ky. 1942 ).

12.Adverse Possession.

The possession by one (1) tenant in common or joint tenant is deemed to be the possession of his cotenants also, and the one in possession cannot acquire title by adverse possession as against his cotenants unless they have notice or knowledge that he denies their possession and claims adversely to them. Fordson Coal Co. v. Vanover, 291 Ky. 447 , 164 S.W.2d 966, 1942 Ky. LEXIS 251 ( Ky. 1942 ).

13.Death of Joint Tenant Prior to Testator.

Where mother and daughter were devised estate as joint tenants and the mother died before the testator, daughter and her brothers took mother’s share by operation of law. Holland v. Holland's Ex'r, 238 Ky. 841 , 38 S.W.2d 967, 1931 Ky. LEXIS 319 ( Ky. 1931 ).

14.Conveyance by One Joint Owner.

One (1) joint owner may not effect partition of jointly owned property by conveying a specific part of the property, but if other owners consent to, acquiesce in or ratify the conveyance, it becomes effective as a partition. This is true as to mineral rights as well as surface rights. Fugate v. Smith, 290 Ky. 115 , 160 S.W.2d 328, 1942 Ky. LEXIS 344 ( Ky. 1942 ).

15.Federal Estate Tax.

Entire value of property of joint tenants is subject to federal estate tax as part of gross estate. O'Shaughnessy v. Commissioner, 60 F.2d 235, 1932 U.S. App. LEXIS 2491 (6th Cir. 1932), cert. denied, 288 U.S. 605, 53 S. Ct. 397, 77 L. Ed. 980, 1933 U.S. LEXIS 114 (U.S. 1933).

16.Burden of Proof.

Joint tenant who objects to partition has burden of proving that land cannot be divided without injuring or prejudicing the interests of one (1) or more of the owners, or without impairment of value. Tuggle v. Davis, 292 Ky. 27 , 165 S.W.2d 844, 1942 Ky. LEXIS 19 ( Ky. 1942 ).

Cited:

Tuggle v. Davis, 292 Ky. 27 , 165 S.W.2d 844, 1942 Ky. LEXIS 19 , 143 A.L.R. 1087 ( Ky. 1942 ).

Research References and Practice Aids

Cross-References.

Distribution of property in case of simultaneous deaths, KRS 397.030 .

Joint owner paying tax has lien, KRS 134.070 .

Parceners have equal rights in inheritance, KRS 391.120 .

Kentucky Law Journal.

Gilbert, Taxation — Inheritance Tax — Interest in Joint Tenancy Passing by Survivorship, 27 Ky. L.J. 474 (1939).

Francis, Should Husband and Wife Hold Real Property with Survivorship? 37 Ky. L.J. 122 (1948).

Vahlsing and Hudson, Inchoate Dower — An Idea Whose Time Is Past, 60 Ky. L.J. 671 (1972).

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

381.130. Exceptions to KRS 381.120.

  1. KRS 381.120 shall not apply to any estate which joint tenants hold as executors or trustees, nor, except as provided in subsection (2) of this section, to an estate conveyed or devised to persons in their own right, when it manifestly appears, from the tenor of the instrument, that it was intended that the part of the one dying should belong to the others, neither shall it affect the mode of proceeding on any joint contract or judgment.
      1. Except as provided in paragraph (b) of this subsection, one (1) or more joint tenants of real property may partition their interest in the real property during their lifetime by deed or other instrument. (2) (a) 1. Except as provided in paragraph (b) of this subsection, one (1) or more joint tenants of real property may partition their interest in the real property during their lifetime by deed or other instrument.
      2. The deed or other instrument shall express the intent of the joint tenant to partition the joint tenant’s interest in the real property and shall be recorded at the office of the county clerk in the county where the real property or any portion of the real property is located.
      3. The partitioning shall be effective at the time the deed or other instrument is recorded.
    1. Residential real property that is owned exclusively by husband and wife as joint tenants with a right of survivorship and actually occupied by them as a principal residence shall not be partitioned as provided in paragraph (a) of this subsection.
    2. The deed or other instrument shall convert the partitioning joint tenant’s interest in the real property into a tenancy in common with the remaining joint tenants. If there are two (2) or more nonpartitioning joint tenants, the interests of the nonpartitioning joint tenants in relation to each other shall be governed pursuant to the terms of the instrument creating the interest.

History. 2349; 1998, ch. 267, § 2, effective July 15, 1998.

NOTES TO DECISIONS

1.Right of Survivorship.

A provision, in deed conveying land to husband and wife, “during their natural lives only, and at their death the same revert to the legal heirs of the party of the first part,” amounts to an express provision for right of survivorship, unless presumption is rebutted by terms of deed. McCallister v. Folden's Assignee, 110 Ky. 732 , 62 S.W. 538, 23 Ky. L. Rptr. 113 , 1901 Ky. LEXIS 126 ( Ky. 1901 ).

The right of survivorship in estates held in joint tenancy was abolished by KRS 381.120 , unless the case falls within the provisions of this section. United States Fidelity & Guaranty Co. v. Jones, 133 Ky. 621 , 111 S.W. 298, 33 Ky. L. Rptr. 737 , 1908 Ky. LEXIS 130 ( Ky. 1908 ). See Osborne v. Hughes, 219 Ky. 116 , 292 S.W. 748, 1927 Ky. LEXIS 292 ( Ky. 1927 ); Du Bois' Adm'r v. Shannon, 275 Ky. 516 , 122 S.W.2d 103, 1938 Ky. LEXIS 456 ( Ky. 1938 ).

When it is sought to establish that the estate of one (1) joint tenant passes the other by survivorship, the instrument relied on must make it clear that such was the purpose of the grantor or testator. United States Fidelity & Guaranty Co. v. Jones, 133 Ky. 621 , 111 S.W. 298, 33 Ky. L. Rptr. 737 , 1908 Ky. LEXIS 130 ( Ky. 1908 ). See Osborne v. Hughes, 219 Ky. 116 , 292 S.W. 748, 1927 Ky. LEXIS 292 ( Ky. 1927 ); Du Bois' Adm'r v. Shannon, 275 Ky. 516 , 122 S.W.2d 103, 1938 Ky. LEXIS 456 ( Ky. 1938 ).

It manifestly appeared from tenor of will that testator intended the part of any child who might die before expiration of particular estate should go to the other children, conditioned that it would go to surviving issue of deceased child, if any. Gatto v. Gatto, 198 Ky. 569 , 250 S.W. 833, 1923 Ky. LEXIS 580 ( Ky. 1923 ).

Where will devised property to testator’s son and two (2) daughters as tenants in common, with mutual right of occupancy and with right of sale by mutual agreement, and with provision that upon death of any of devisees without issue his interest should pass to the survivors, each devisee was possessed of a defeasible fee in an undivided third of the property, plus the right to the future or executory estates which would come into existence when and if the other devisees died without issue, and during their lifetime each devisee had all the rights and privileges of a fee-simple owner subject to his sister’s right of occupancy and his interest could be sold on execution but if he should die prior to the death of his sister without leaving issue, purchaser’s title to property would be defeated. Sipes v. Boehmer, 291 Ky. 824 , 165 S.W.2d 807, 1942 Ky. LEXIS 326 ( Ky. 1942 ).

The clear intent of this section is to preserve the survivorship aspect of joint tenancies, where “it manifestly appears, from the tenor of the instrument, that it was intended that the part of the one dying should belong to the others.” Sanderson v. Saxon, 834 S.W.2d 676, 1992 Ky. LEXIS 101 ( Ky. 1992 ).

Where deed recited that the conveyance was “with survivorship” to the two (2) grantees “jointly and to the survivor”, the deed manifestly expressed the intent that the interest of the one first dying should belong to the other. This constituted a joint tenancy in accordance with KRS 381.120 . Sanderson v. Saxon, 834 S.W.2d 676, 1992 Ky. LEXIS 101 ( Ky. 1992 ).

When it was sought to establish that the estate of one (1) joint tenant passed the other by survivorship, the instrument relied on had to make it clear that such was the purpose of the grantor or testator. Truesdell v. White, 76 Ky. 616 , 1878 Ky. LEXIS 9 ( Ky. 1878 ).

2.Real Estate.

A deed in the usual form purporting to convey to husband and wife a fee-simple title to the land with provision “now it being understood that the said within conveyance reverts to the wife at the death of the husband or at the death of the wife said conveyance reverts to the husband” evidently meant that at the death of either the survivor took title to the whole tract of land. York v. Adams, 277 Ky. 577 , 126 S.W.2d 1077, 1939 Ky. LEXIS 693 ( Ky. 1939 ).

KRS 381.120 providing that a joint tenant’s part of the joint estate shall descend to his heirs when he dies was not applicable where it manifestly appeared from the will that should class members predecease the life tenant, their mother, the home farm was to be shared equally by the four (4) eldest sons, and a daughter of a class member who predeceased the life tenant had no interest in the home farm, since she had a vested remainder at testator’s death which was subject to complete defeasance if she did not survive her mother which was defeated by her death before her mother who was the life tenant. Cromer v. Acton, 298 S.W.2d 20, 1957 Ky. LEXIS 361 ( Ky. 1957 ).

3.Joint Bank Accounts.

Where daughter was rendering services to father at time of creation of joint bank account with survivorship provision, daughter was entitled to account on father’s death on contract theory, even though on gift theory transaction might have been incomplete because father retained right to draw on account. Armstrong's Ex'r v. Morris Plan Industrial Bank, 282 Ky. 192 , 138 S.W.2d 359, 1940 Ky. LEXIS 154 ( Ky. 1940 ).

Where husband and wife placed their separate funds in a joint account, with express understanding with bank that either could draw on account, and that balance of account on death of either would pass to survivor, the wife was entitled to the account on the death of the husband. Bishop v. Bishop's Ex'x, 293 Ky. 652 , 170 S.W.2d 1, 1943 Ky. LEXIS 683 ( Ky. 1943 ).

4.Notes.

Where the survivor of two (2) joint payees of a note was the sole devisee of deceased joint payee, she was in fact the sole real owner. Perry v. Perry's Ex'r, 98 Ky. 242 , 32 S.W. 755, 17 Ky. L. Rptr. 868 , 1895 Ky. LEXIS 47 (Ky. Ct. App. 1895).

5.Oil and Gas.

The usual statutes relating to the partitioning of real estate do not apply to oil and gas because of the insuperable difficulty in determining an equitable division of these mobile elements as may be done as between owners of the surface. Osborn v. Osborn, 267 Ky. 757 , 103 S.W.2d 262, 1937 Ky. LEXIS 381 ( Ky. 1937 ).

6.Taxation.

The transfer of estates by right of survivorship is taxable under KRS 140.050 . Du Bois' Adm'r v. Shannon, 275 Ky. 516 , 122 S.W.2d 103, 1938 Ky. LEXIS 456 ( Ky. 1938 ).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

381.135. Court-appointed commissioners to determine division of land jointly held and allotment of dower or curtesy — Survey requirement.

    1. As used in this subsection: (1) (a) As used in this subsection:
      1. “Ownership interest in a closely held farm corporation or partnership” means any interest in a farm with one (1) or more of the shareholders or partners owning twenty percent (20%) or more of the corporation or partnership.
      2. “Farm” means a tract of at least five (5) contiguous acres used for the production of agricultural or horticultural crops including, but not limited to, livestock, livestock products, poultry, poultry products, grain, hay, pastures, soybeans, tobacco, timber, orchard fruits, vegetables, flowers, or ornamental plants, including provision for dwellings for persons and their families who are engaged in the above agricultural use on the tract, but not including residential building development for sale or lease to the public.
    2. A person desiring a division of land held jointly with others, a person desiring an allotment of dower or curtesy, or a person with an ownership interest of twenty percent (20%) or more in a closely held farm corporation or partnership may file in the Circuit Court of the county in which the land or the greater part thereof lies a petition containing a description of the land, a statement of the names of those having an interest in it, and the amount of such interest, with a prayer for the division or allotment; and, thereupon, all persons interested in the property who have not united in the petition shall be summoned to answer not more than twenty (20) days after service of the summons. The written evidences of the title to the land, or copies thereof, if there be any, must be filed with the petition.
  1. The statutory guardian of an infant or guardian or conservator of a person adjudged mentally disabled may file or unite in the petition, in the names of, and in conjunction with such infant or mentally disabled person; and, if the petition be against an infant or mentally disabled person the guardian or conservator may appear and defend for them; if they fail to do so, the court shall appoint a discreet person for that purpose.
  2. Upon such a petition by all interested in the property, or upon the expiration of twenty (20) days after the service of a summons on all who have an interest in the property and have not united in the petition, the court may order the division, or allotment of dower or curtesy, according to the rights of the parties.
  3. The court shall appoint three (3) competent persons as commissioners to determine the division or allotment of land, having a due regard for the rights of all parties interested. Before proceeding to act, the commissioners shall take an oath to discharge their duty impartially.
  4. The order of appointment shall fix a time and place for the meeting of the commissioners who shall meet accordingly; but, if prevented from meeting at the time and place so fixed, they may meet as soon thereafter as convenient, and may adjourn to such other time and place as they may agree upon, until their duty shall be performed.
  5. The commissioners shall equitably determine the allotment to the parties of their respective interests in the land. A registered land surveyor shall perform the actual survey of the land in accordance with the determination made by the commissioners, and prepare the descriptions of the land, including all related maps, plats, and documents, and he shall affix thereto his personal seal and signature, unless such actual survey and the resultant description, maps, plats, and documents pertaining to this land are already in existence. The commissioners shall make report thereof to the court, which may either confirm, set aside, or remand the report to the commissioners for correction.
  6. If the report be confirmed, a commissioner to be appointed for the purpose shall, by deed, convey to each party the land allotted to him.
  7. If the report be confirmed by the Circuit Court, it, together with said surveyor’s descriptions, survey and all related documents, and the applicable deeds shall be certified by the clerk of that court to the county clerk, for record.
  8. Two (2) of the commissioners may act, if one (1) refuses or fails to do so.
  9. A party summoned may, by answer, controvert the allegations of the petition or contest the rights claimed therein; and, thereupon, the case shall be tried and decided as an ordinary action, but without the intervention of a jury.
  10. The costs of the action shall be apportioned among the parties in the ratio of their interests, except that the costs arising from a contest of fact or law shall be adjudged against the unsuccessful party.
  11. No verification of the pleadings shall be required.
  12. The commissioners and the land surveyor shall be paid a reasonable compensation, to be taxed as costs.
  13. This section shall not affect the jurisdiction of courts of equity to make partition or allot dower or curtesy.

History. C.C. 499: trans. Acts 1952, ch. 84, § 1; 1974, ch. 386, § 68; 1976 (Ex. Sess.), ch. 14, § 302, effective January 2, 1978; 1978, ch. 384, § 508, effective June 17, 1978; 1982, ch. 141, § 96, effective July 1, 1982; 1988, ch. 227, § 1, effective July 15, 1988; 1998, ch. 316, § 1, effective July 15, 1998.

Compiler’s Notes.

This section was amended by § 105 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Construction.

It is the rule in this state that the law favors a division of land in kind rather than a sale and a division of the proceeds and this rule particularly obtains where the property sought to be divided or sold is farmland or other parcels of real estate reasonably susceptible of division. However, with respect to town lots, it has been consistently held that the court will presume, without necessity of proof, that such lot is not susceptible of advantageous division. Fannin v. Fannin, 256 Ky. 273 , 75 S.W.2d 1042, 1934 Ky. LEXIS 375 ( Ky. 1934 ).

Where the owner of an undivided remainder interest and the life tenant filed a petition in equity against the other owners of remainder interests for partition of the remainder, it was an equitable action for partition under subsection (14) of this section as opposed to one to divide lands jointly owned under subsection (1). Faulkner v. Terrell, 287 S.W.2d 409, 1956 Ky. LEXIS 453 ( Ky. 1956 ).

2.Application.

Procedure set forth in this section relating to partition by joint tenants applies under KRS 381.136 relating to partition by life tenants. Atkinson v. Kish, 420 S.W.2d 104, 1967 Ky. LEXIS 96 ( Ky. 1967 ).

3.Jurisdiction.

The county court has jurisdiction to divide land which is held jointly by two (2) or more persons, and, upon an application for a division by one of several joint owners, may hear and determine any equitable defense that may be pleaded against a division. Hopkins v. Crouch, 86 Ky. 281 , 5 S.W. 557, 9 Ky. L. Rptr. 554 , 1887 Ky. LEXIS 125 ( Ky. 1887 ).

Where the right to partition the land is contested or the title to the land is involved, then on the motion of either party the action is to be removed to the Circuit Court for the trial of the question of title. Hunt v. Phillips, 105 S.W. 445, 32 Ky. L. Rptr. 257 (1907).

The Circuit Court and the county court have jurisdiction over partition proceedings, and the pendency of such a suit in one court constitutes a bar to a later filed suit in a different or the same court. Webb v. Martin, 194 Ky. 360 , 238 S.W. 1043, 1922 Ky. LEXIS 153 ( Ky. 1922 ).

Subject to the right of a party to have the action removed from the county court to the Circuit Court after the filing of an answer controverting the allegations of the petition, or contesting the rights therein claimed, county courts and circuit courts have concurrent jurisdiction of partition proceedings. Duke v. Allen, 198 Ky. 368 , 248 S.W. 894, 1923 Ky. LEXIS 458 ( Ky. 1923 ).

A county court, in a proceeding to partition land, is a court of general jurisdiction, and its judgment is immune from collateral attack as the judgment of any other court of general jurisdiction, and the same presumptions are indulged in its favor. Morgan v. Big Woods Lumber Co., 198 Ky. 88 , 249 S.W. 329, 1923 Ky. LEXIS 486 ( Ky. 1923 ).

County courts and Circuit Courts have concurrent jurisdiction of partition proceedings and, from a final judgment rendered by either court an appeal, may be taken to the Court of Appeals, but a claim to dower is an assertion of a right to an interest in real estate and the Circuit Court has exclusive jurisdiction under KRS 23.010 of actions in which the title to real estate is in question. Newsome v. Reynolds, 262 Ky. 484 , 90 S.W.2d 682, 1936 Ky. LEXIS 44 ( Ky. 1936 ).

Sale of property and distribution of proceeds was properly ordered by common-law court where it determined land could not be partitioned though court failed to enter an order transferring the case to the equity docket. Cunningham v. Grey, 271 Ky. 84 , 111 S.W.2d 579, 1937 Ky. LEXIS 200 ( Ky. 1937 ).

The Circuit Court properly adjudicated the validity of two (2) deeds under which plaintiff was claiming in a partition proceeding and the proceeding did not constitute a collateral attack on the deeds. Combs v. Combs, 305 Ky. 358 , 204 S.W.2d 361, 1947 Ky. LEXIS 816 ( Ky. 1947 ).

4.Authority of Court.

Under this section the court has no power to make partition or to specifically direct the commissioners how to make the division. Garth's Guardian v. Thompson, 110 Ky. 984 , 63 S.W. 40, 23 Ky. L. Rptr. 403 , 1901 Ky. LEXIS 164 ( Ky. 1901 ).

The court has no authority to partition land, or direct the commissioners how to make the division, but the partition should be set aside and new commissioners appointed to make proper partition where a party is entitled to such relief. Rudy v. Ramey, 160 Ky. 842 , 170 S.W. 179, 1914 Ky. LEXIS 541 ( Ky. 1914 ).

In statutory partition, court may not partition land or direct commissioners how to make division. However, in partition in equity, parties, by pleadings, may make issues they deem best, and court must try issues as in other equitable actions, and may adjudge parties’ rights as to taxes, rents, improvements, owelty and reasonable easements authorized by the pleadings. Howard v. Long, 238 Ky. 822 , 38 S.W.2d 951, 1931 Ky. LEXIS 317 ( Ky. 1931 ).

In statutory petition the court could not partition land or direct commissioners how to make division but it had authority only to direct commissioners to make partition having due regard to rights of all interested parties and to divide it as nearly equal as possible, considering quantity, quality and value. Kirk v. Maynard, 298 Ky. 576 , 183 S.W.2d 547, 1944 Ky. LEXIS 949 ( Ky. 1944 ).

In statutory proceedings the trial court had to appoint commissioners and follow proceedings provided by law and it did not have authority to find that parties had orally agreed to partition land they had inherited from their mother. Boyers v. Boyers, 310 Ky. 727 , 221 S.W.2d 657, 1949 Ky. LEXIS 1002 ( Ky. 1949 ).

5.Allotment of Dower.

Although dower was never actually allotted to widow under this section, a right of dower passed to her and it was this right of dower which was the basis of her suit for the sale of the real estate and not her right of quarantine under KRS 392.050 , which right was not a vested interest, and marital deduction should have been allowed as to the cash amount received by her in settlement of her dower interest in real estate owned by her and others as tenants in common. Dougherty v. United States, 292 F.2d 331, 1961 U.S. App. LEXIS 3942 (6th Cir. Ky. 1961 ).

The heirs or the widow can proceed under this section to have dower admeasured, allotted and assigned to the widow or, if the real estate cannot be divided without materially impairing its value or the value of the widow’s interest therein, the widow has the right under KRS 389.050 to have that real estate sold free of her contingent right to dower and to obtain a reasonable compensation out of the proceeds of sale. Moore v. United States, 214 F. Supp. 603, 1963 U.S. Dist. LEXIS 10294 (W.D. Ky. 1963 ).

In an equitable action for allotment of dower, the court may direct the commissioners as to the character of the division they should make. Laferty v. Robinson, 241 Ky. 512 , 44 S.W.2d 524, 1931 Ky. LEXIS 109 ( Ky. 1931 ).

6.Persons Entitled to Partition.

A owned one undivided half of a tract of land in remainder. B owned the other half in remainder. C owned a life estate in the entire tract. A, having leased C’s life estate, applied to the county court for a division of the land which was resisted by B. Upon hearing, the court dismissed A’s petition. The court acted properly in refusing the division, as to divide the land would furnish A both the motive and the power to improve his portion of the land, and throw the burden of cultivation on B’s portion. Hopkins v. Crouch, 86 Ky. 281 , 5 S.W. 557, 9 Ky. L. Rptr. 554 , 1887 Ky. LEXIS 125 ( Ky. 1887 ).

Fee owners of an undivided portion of land may, under this section, have a partition thereof that will be binding not only on the owner of the life estate in the other portion, but the owners of the remainder after the life estate. Turley v. Turley, 193 Ky. 151 , 235 S.W. 18, 1921 Ky. LEXIS 198 ( Ky. 1921 ).

Holder of an undivided interest in fee and an undivided interest for life who has placed lasting and valuable improvements with his own funds on the property is entitled in a partition to have set apart to him that part of the land upon which the improvements have been placed, if the allotment can be so made without injury or detriment to the other interest. Orsburn v. Orsburn, 196 Ky. 176 , 244 S.W. 417, 1922 Ky. LEXIS 484 ( Ky. 1922 ).

One having fee-simple title to one-half (1/2) undivided interest in tract of land, and also a life estate in the other one-half (1/2) undivided interest therein, is entitled to a partition as against contingent remaindermen having an interest in the one-half (1/2) undivided interest which he holds for life under the same instrument, there being at the time no vested remaindermen in existence. Orsburn v. Orsburn, 196 Ky. 176 , 244 S.W. 417, 1922 Ky. LEXIS 484 ( Ky. 1922 ).

This section does not limit the persons between whom a court may make a partition of lands to holders of legal titles. The term used therein to describe the person who may compel a partition is one holding land jointly with others. It includes a coparcener, tenant in common, joint tenant, and the holders of both legal and equitable titles. Holder of an equitable title to an interest in land, if he has a present right of possession in contradistinction to an interest to be enjoyed in the future such as a remainder or a reversion, may assert his right and have a partition. Morgan v. Big Woods Lumber Co., 198 Ky. 88 , 249 S.W. 329, 1923 Ky. LEXIS 486 ( Ky. 1923 ).

In action brought by her committee, chancellor did not err in setting apart to mental incompetent an undivided one-fourth (1/4) interest in land inherited from her father where she was not made a party to action to settle her cotenant brother’s estate and the entire land was sold at judicial sale to pay her deceased brother’s debts. Flanery v. Greene, 289 Ky. 244 , 158 S.W.2d 413, 1942 Ky. LEXIS 525 ( Ky. 1942 ).

7.Parties.

In action brought by part of appellees, under this section, for division of land among heirs of the deceased, and all persons claiming under the deceased appear to have been made parties, lower court properly refused to permit filing of petition by other parties setting up claim of title to part of the tract, adverse to title of deceased. Bacon v. Boyd, 34 S.W. 525, 17 Ky. L. Rptr. 1276 (1896).

In an action for partition of land under this section, it is not necessary to make one who has mortgage lien on the one-fifth (1/5) interest of one of the owners a party to such action. When a person takes a lien upon an undivided interest in land, he must receive it with the understanding that his lien will follow upon the particular interest wherever placed in the division. Barry v. Baker, 93 S.W. 1061, 29 Ky. L. Rptr. 573 (1906).

Where wife, a contingent remainderman, died before termination of life estate, she was at no time seized of the land, and her husband was therefore not entitled to curtesy. Hence, his demurrer to petition for division filed by other remaindermen was properly overruled. Hunt v. Phillips, 105 S.W. 445, 32 Ky. L. Rptr. 257 (1907).

A valid partition may not be had unless all the tenants in common have been subjected to the jurisdiction of the court rendering the decree. Hence, judgment ordering partition of land is reversed with directions to have made parties the heirs at law of two (2) of the plaintiffs who died pending the action, without revivor. Burchett v. Clark, 162 Ky. 586 , 172 S.W. 1048, 1915 Ky. LEXIS 124 ( Ky. 1915 ).

Remaindermen are proper parties to action for partition under this section. Turley v. Turley, 193 Ky. 151 , 235 S.W. 18, 1921 Ky. LEXIS 198 ( Ky. 1921 ).

8.— Infants.

This section clearly contemplates that, in suit for partition of real estate held jointly by infants and adults, the infants shall be parties to the proceeding, either as plaintiffs or defendants, in order to divest them of title. Blue v. Waters, 114 Ky. 659 , 71 S.W. 889, 24 Ky. L. Rptr. 1481 , 1903 Ky. LEXIS 33 ( Ky. 1903 ).

While infants are necessary parties to an action for partition of land held by them as joint tenants, and a judgment of partition in a suit to which they were not parties was erroneous, their statutory guardian, after they have been brought before the court, may in open court adopt the report if the partition was equal and just. Blue v. Waters, 114 Ky. 659 , 71 S.W. 889, 24 Ky. L. Rptr. 1481 , 1903 Ky. LEXIS 33 ( Ky. 1903 ).

It is not a valid objection that one of the plaintiffs was under 21 years of age, where all parties in interest in the property are made parties in action and, under this section, the statutory guardian of an infant may file or unite in a petition in the name of and in conjunction with such infant. Kentucky Fluor Spar Co. v. Pierce's Ex'rs, 184 Ky. 573 , 213 S.W. 542, 1919 Ky. LEXIS 138 ( Ky. 1919 ).

9.Possession.

To maintain an action under this section for division of land by one cotenant against another, it is not necessary that the one who brings the suit be in possession of the land. Williams v. Capital Mining, Lumber & Oil Co., 153 Ky. 772 , 156 S.W. 409, 1913 Ky. LEXIS 919 ( Ky. 1913 ).

10.Pleading.

Allegation in petition that the deceased husband and plaintiff owned it jointly, he owning an undivided two thirds (2/3) and she the other third, and that they had been in possession of it and living on it for 30 years up to his death was a sufficient averment of seizure of title and possession. Bartee v. Edmunds, 96 S.W. 535, 29 Ky. L. Rptr. 872 (1906)

Petition in action to divide land did not conform to requirements of this section, the statements being mere conclusions of the pleader and not sufficient to show title. Toler's Heirs v. Toler, 110 S.W. 388, 33 Ky. L. Rptr. 594 (1908).

In action under this section for division or partition of land held jointly, while the petition is uncertain as to the relief desired, as amended it contains all material allegations necessary to a partition, and is a substantial compliance with the law. While it would have been much better for plaintiff to have described the land in the body of his pleadings, the description contained in the deeds filed with his pleadings will be regarded as sufficient. Nickels v. Mineral Development Co., 152 Ky. 198 , 153 S.W. 235, 1913 Ky. LEXIS 635 ( Ky. 1913 ).

Petition alleging plaintiff owned by inheritance one tenth of land and failing to allege the names and interest of the other nine tenths was fatally defective. Bates v. Hanks, 262 Ky. 556 , 90 S.W.2d 743, 1935 Ky. LEXIS 793 ( Ky. 1935 ).

Petition which alleged that the plaintiff held land jointly with others, described land, gave the names of those having an interest in it, and amount of such interest, contained prayer for allotment of dower and division of property, and had filed with it written evidence of plaintiff’s title to land, together with affidavit showing the other joint owners acquired title by descent was not demurrable, although it is shown that tract contained 40 acres to be partitioned among seven persons after allotment of dower. Morrison v. Bartlett, 263 Ky. 767 , 93 S.W.2d 843, 1936 Ky. LEXIS 244 ( Ky. 1936 ).

Where the only pleadings filed asked for a partition of land, no proof was taken and one of the joint owners was not before the court, chancellor clearly erred in ordering sale. Newsom v. Johnson, 255 S.W.2d 33, 1953 Ky. LEXIS 634 ( Ky. 1953 ).

11.— Filing Evidence of Title.

Failing to file title papers in an action is not ground for demurrer; the proper practice is to have the plaintiff ordered to file them. Bartee v. Edmunds, 96 S.W. 535, 29 Ky. L. Rptr. 872 (1906).

This section requires that the written evidence of the title to the land, or copies thereof, if there be any, must be filed with the petition. Toler's Heirs v. Toler, 110 S.W. 388, 33 Ky. L. Rptr. 594 (1908).

In order to take advantage of failure to file written evidences of title, as required by this section, a motion to that effect must have been made in the trial court and, in the absence of such motion, the defect is held to have been waived. Vanover v. Steele, 173 Ky. 114 , 190 S.W. 667, 1917 Ky. LEXIS 414 ( Ky. 1917 ).

An owner of an undivided interest in land should not be deprived of his right to have his interest set apart to him because he could not file title papers, because cases may arise when it is not possible to file the title papers or copies thereof, and in such cases it is only necessary to comply as nearly with the provisions of this section as possible. Kerr v. Watkins, 234 Ky. 104 , 27 S.W.2d 679, 1930 Ky. LEXIS 130 ( Ky. 1930 ).

12.Service of Summons.

The words “summoned” and “service of summons” mean service in any way that is appropriate and authorized and are broad enough to include constructive service. Ezzell v. Exall, 211 Ky. 814 , 278 S.W. 155, 1925 Ky. LEXIS 974 ( Ky. 1925 ).

Valid partition of lands may not be had where summons is not served upon defendants ten days before commencement of term in which orders are entered. Whittaker v. Combs, 253 S.W.2d 400, 1952 Ky. LEXIS 1094 ( Ky. 1952 ).

13.Report of Commissioners.

Where the three commissioners selected by agreement of the parties to divide the land reported that they had made a fair and equal division, while four witnesses, one of them being appellant, made affidavit that the division was unequal, the report of the commissioners must control. Mead v. Mead, 101 S.W. 330, 31 Ky. L. Rptr. 70 (1907).

Commissioners could not create passway over land where such did not already exist and where the judgment did not direct them to do so. Howard v. Long, 238 Ky. 822 , 38 S.W.2d 951, 1931 Ky. LEXIS 317 ( Ky. 1931 ).

A report of division of land by disinterested commissioners will not be set aside as unequal where the testimony, though conflicting, is sufficient to support it. Ratliff v. Yost, 263 Ky. 239 , 92 S.W.2d 95, 1936 Ky. LEXIS 165 ( Ky. 1936 ).

Where action is brought by son against sister and mother for sale of alleged indivisible property, jointly owned by brother and sister, subject to dower rights of mother, and mother and sister joined issue asking that dower be set apart but sought no further partition, report of commissioners, dividing the property in half and allotting dower in a portion of the western half, including the dwelling house and curtilage, should not be set aside where there is substantial evidence to support it. Purcell v. Purcell, 303 Ky. 478 , 198 S.W.2d 43, 1946 Ky. LEXIS 874 ( Ky. 1946 ).

It is the rule that a report of division of land by disinterested commissioners should not be set aside when there is substantial evidence to support it and this is especially so on appeal where the report has been confirmed by the chancellor and, unless the finding of the chancellor overruling the exceptions and confirming the report is against the weight of the evidence, it will not be disturbed. Faulkner v. Terrell, 287 S.W.2d 409, 1956 Ky. LEXIS 453 ( Ky. 1956 ).

14.Order of County Court.

Where order was made in the county court appointing commissioners to set apart the dower interest to the widow and to divide the remainder of the land among seven heirs and, after the report of the division was made, one of the heirs filed an answer alleging that one of the heirs was not entitled to a share in the division as he had already received form his father land worth much more than the interest of any of the children in the remainder, and on appeal it was insisted that the court had no power at a subsequent term to change the order of division, as it was a final order, and the only remedy was by appeal, the order directing commissioners to make a division of land was not final and county court had power to set aside report of division at its next term. Salyer v. Arnett, 62 S.W. 1031, 23 Ky. L. Rptr. 321 , 1901 Ky. LEXIS 467 (Ky. Ct. App. 1901).

15.Re-reference to Commissioners.

Upon the rejection of the report of division, a re-reference should have been had to the same or other commissioners, as the court had no power to make partition except by confirming a report of commissioners. Eakins v. Eakins, 112 Ky. 347 , 65 S.W. 811, 23 Ky. L. Rptr. 1637 , 1901 Ky. LEXIS 317 ( Ky. 1901 ).

16.Method of Partition.

The equitable rule is to lay off a portion to each cotenant adjoining the lands owned by him, if this can be done without material injury to the other cotenants, or, if this cannot be done, then so to allot the lands as to serve best the convenience of all the parties. Ratliff v. Yost, 263 Ky. 239 , 92 S.W.2d 95, 1936 Ky. LEXIS 165 ( Ky. 1936 ). See Kirk v. Maynard, 298 Ky. 576 , 183 S.W.2d 547, 1944 Ky. LEXIS 949 ( Ky. 1944 ); Faulkner v. Terrell, 287 S.W.2d 409, 1956 Ky. LEXIS 453 ( Ky. 1956 ).

17.Judgment.

Judgment ordering sale and division of proceeds instead of partition in kind was in error where spouses, objecting to partition on ground oil and gas existed under the land and there was a possibility of development of coal, conceded divisibility of the land and that existence of oil and gas was speculative and possibility of developing coal remote. Tuggle v. Davis, 292 Ky. 27 , 165 S.W.2d 844, 1942 Ky. LEXIS 19 ( Ky. 1942 ).

18.Payment of Attorneys.

Where there is a contest over the right or advisability of partition, attorneys should be paid by the parties they represent. Lang v. Constance, 46 S.W. 693, 20 Ky. L. Rptr. 502 (1898).

19.Warranty of Title.

Where there is a compulsory partition of lands between joint tenants, tenants in common or coparceners, neither the commissioner who conveys the separate allotments nor the court has any authority to insert in the deed a warranty of the title to the land allotted, and if such warranty is inserted in such a deed, in the absence of any fact creating an estoppel to deny the obligations upon the warranty, the owners will not be bound by the warranty, except to the extent of the partitioners and their heirs, and such warranty cannot be invoked by an alienee of one of the joint owners after partition is made, as it will not run with the land. Beale v. Stroud, 191 Ky. 755 , 231 S.W. 522, 1921 Ky. LEXIS 391 ( Ky. 1921 ).

20.Appeal.

Where land is partitioned in the county court, pursuant to this section, and the error of which any of the parties complaints appears in the record as made up in the county court, his remedy is by appeal directly to the Court of Appeals. Howard v. Deems, 178 Ky. 760 , 199 S.W. 1079, 1918 Ky. LEXIS 458 ( Ky. 1918 ).

An appeal may be taken to the Court of Appeals from a final judgment whether rendered by the Circuit Court or the county court. Davis v. Caudill, 263 Ky. 214 , 92 S.W.2d 62, 1936 Ky. LEXIS 155 ( Ky. 1936 ).

Cited:

Adams v. De Dominguez, 129 Ky. 599 , 112 S.W. 663, 1908 Ky. LEXIS 199 ( Ky. 1908 ); Cochran v. Simmons, 177 Ky. 562 , 197 S.W. 930, 1917 Ky. LEXIS 606 (1917); Bettes v. Rogers, 281 Ky. 118 , 135 S.W.2d 74, 1939 Ky. LEXIS 25 ( Ky. 1939 ); Morrison v. Bartlett, 292 Ky. 530 , 166 S.W.2d 989, 1942 Ky. LEXIS 117 ( Ky. 1942 ); Whitaker v. Fields, 377 S.W.2d 67, 1964 Ky. LEXIS 478 ( Ky. 1964 ); Branham v. Estate of Elkins, 425 S.W.3d 103, 2014 Ky. App. LEXIS 17 (Ky. Ct. App. 2014).

Research References and Practice Aids

Cross-References.

Commissioner’s fees, KRS 64.270 .

Kentucky Law Journal.

Vahlsing and Hudson, Inchoate Dower — An Idea Whose Time Is Past, 60 Ky. L.J. 671 (1972).

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer Asserting Property Should be Divided Rather Than Sold, Form 318.04.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Partition, Form 318.03.

Caldwell’s Kentucky Form Book, 5th Ed., Order Awarding Dower and Appointing Commissioners, Form 254.10.

Caldwell’s Kentucky Form Book, 5th Ed., Order Confirming Commissioners’ Report Allotting Dower, Form 254.14.

Caldwell’s Kentucky Form Book, 5th Ed., Order Filing Report of Commissioners to Allot Dower, Form 254.13.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Allotment by Surviving Spouse against Decedent Spouse’s Grantee, Form 254.05.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Allotment by Surviving Spouse — Land Divisible, Form 254.07.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Allotment by Surviving Spouse — Land Indivisible, Form 254.08.

Caldwell’s Kentucky Form Book, 5th Ed., Petition for Partition of Jointly Owned Real Property, Form 230.18.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Dower and Curtesy Exemption, § 254.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Infants, § 257.00.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Partition and Judicial Sales, § 318.00.

Caldwell’s Kentucky Form Book, 5th Ed., Report of Commissioners, Form 254.11.

Caldwell’s Kentucky Form Book, 5th Ed., Report of Commissioners (Another Form), Form 254.12.

Caldwell’s Kentucky Form Book, 5th Ed., Summons (AOC 105), Form 254.09.

381.136. Life tenants and their descendants — Partition.

  1. Where the land is held under a deed or will vesting a life estate in two (2) or more persons or in trust for their benefit, with remainder as to the share of each to his or her children or descendants, it shall be lawful for a court of equity, on the petition of one (1) of such life tenants and his or her children or descendants who would then be entitled to such remainder, all persons having interests in such lands being made parties, to partition such land so as to set apart to such life tenants and children or descendants so much of said land to which they shall be entitled in severalty; and to that alone shall attach the title or interest of after-born children or descendants in whom, by the terms of said deed or will, such a remainder would vest.
  2. Where part of the land so held shall be situated in this state and part in another state, the court may, in making partition, take into consideration the value of all of said land, and set apart to those resident in this state land in this state equal to their full share of all said land, securing, by proper deeds and orders to the nonresidents, release of the interest of such residents in the lands in the other state or territory.

History. C.C. 499a: amend. Acts 1886, ch. 1171, §§ 1, 2; trans. Acts 1952, ch. 84, § 1.

NOTES TO DECISIONS

1.In General.

Because a Circuit Court had subject matter jurisdiction over a partition action pursuant to a constitutional grant of general jurisdiction, any error associated with the application of KRS 381.136 rendered the judgment voidable, not void. Hisle v. Lexington-Fayette Urban County Gov't, 258 S.W.3d 422, 2008 Ky. App. LEXIS 27 (Ky. Ct. App. 2008).

Generally, state courts of general jurisdiction have in rem subject matter jurisdiction over real property in the state. While a partition action is in the nature of an in rem proceeding, it also has characteristics of a quasi in rem proceeding because it deals with the title to realty and operates as to the parties in the proceeding. Accordingly, a partition action requires both in rem subject matter jurisdiction and personal jurisdiction. Hisle v. Lexington-Fayette Urban County Gov't, 258 S.W.3d 422, 2008 Ky. App. LEXIS 27 (Ky. Ct. App. 2008).

2.Application.

This section did not apply where one person owned a nine-tenths (9/10) interest for life and the owners of the one-tenth (1/10) remainder did not own under the life tenant but by deed from testator’s children. Eversole v. Combs, 130 Ky. 82 , 112 S.W. 1132, 1908 Ky. LEXIS 242 ( Ky. 1908 ).

3.Procedure.

Procedures set forth under KRS 381.135 are applicable under this section and court cannot divide land without an examination and report by commissioners regardless of authority under which action for partition is brought. Atkinson v. Kish, 420 S.W.2d 104, 1967 Ky. LEXIS 96 ( Ky. 1967 ).

4.Division Between Life Tenants.

Owner of one tenth (1/10) of tract of land for life of person who owns the other nine tenths (9/10) of the tract for life may have the tract divided as between them but he is entitled to no relief against the other remainderman and, at the death of the person on whom the life estates depend, the whole body of land would have to be divided again. Eversole v. Combs, 130 Ky. 82 , 112 S.W. 1132, 1908 Ky. LEXIS 242 ( Ky. 1908 ).

381.140. Posthumous child may take estate in remainder.

When any estate is limited by deed or will in remainder to the son or daughter, or the use of the son or daughter to be begotten of any person, such son or daughter, born after the death of his or her parent, shall take the estate in the same manner as if he or she had been born in the lifetime of the parent although no estate was created to support the remainder after the death of the parent.

History. 2350.

381.150. Conveyance of greater estate than grantor owns — Effect.

A deed and warranty of land purporting to pass or assure a greater right or estate than the person can lawfully pass or assure, shall operate to convey on warrant so much of the right and estate as such person can lawfully convey. If such conveyance is made by a tenant for life it shall not work a forfeiture of his estate.

History. 2291, 2351.

NOTES TO DECISIONS

1.In General.

A deed can only convey title to land actually owned by grantor and the grantee takes no greater title under a deed than the grantor had. York v. Perkins, 269 S.W.2d 242, 1954 Ky. LEXIS 977 ( Ky. 1954 ).

2.Application.

This section and KRS 381.160 did not apply where father conveyed his land in unequal portions to his sons, but did not convey a greater estate to first son than he had, and the grantee of the second son who received the larger portion claimed part of the land held by the first son. Steele v. Ferrell, 288 Ky. 392 , 156 S.W.2d 153, 1941 Ky. LEXIS 100 ( Ky. 1941 ).

Where two couples each owned one-half undivided interest in the property as cotenants, deeds that conveyed one of the couples’ interest in the property should not be rescinded because as tenants in common they could convey their interests without consulting the other cotenants, and the effect is to convey only the interest the couple could lawfully convey. 2007 U.S. Dist. LEXIS 67974.

3.Life Tenant.

The most a deed from life tenant and trustee could convey would be a life estate. Fox v. Faulkner, 222 Ky. 584 , 1 S.W.2d 1079, 1927 Ky. LEXIS 956 ( Ky. 1927 ).

Where master commissioner’s deed conveyed only a life estate in land to woman, and remainder belonged to her children, she could not acquire title by adverse possession. Kerr v. Watkins, 234 Ky. 104 , 27 S.W.2d 679, 1930 Ky. LEXIS 130 ( Ky. 1930 ).

A deed by the life tenant purporting to convey the fee only passes a life estate. Superior Oil Corp. v. Alcorn, 242 Ky. 814 , 47 S.W.2d 973, 1930 Ky. LEXIS 855 ( Ky. 1930 ).

An attempt by the life tenant to convey the fee does not affect the remainderman or his interest. Superior Oil Corp. v. Alcorn, 242 Ky. 814 , 47 S.W.2d 973, 1930 Ky. LEXIS 855 ( Ky. 1930 ).

While by the common law a tenant for life who executed a deed conveying the property in fee accelerated the remainder and gave the remainderman an immediate right of entry, this was remedied in this state by law prior to 1852. Superior Oil Corp. v. Alcorn, 242 Ky. 814 , 47 S.W.2d 973, 1930 Ky. LEXIS 855 ( Ky. 1930 ).

The vendee of a life tenant takes only a life estate, notwithstanding the deed of the life tenant purports to convey a fee-simple title. Adkins v. Hackworth, 279 Ky. 352 , 130 S.W.2d 774, 1939 Ky. LEXIS 277 ( Ky. 1939 ).

Grantees obtained from the life tenant only the estate he actually had and not the fee simple he pretended to convey and possession by grantees and life tenant grantor were not adverse to remainder interest for they were constructively notified by recordation of deed of remainder interest and they did nothing to signify to remaindermen that they were claiming adversely. McDonald v. Burke, 288 S.W.2d 363, 1955 Ky. LEXIS 3 ( Ky. 1955 ).

4.Life Estate with Remainder to Heirs.

Where deceased held a life estate with remainder to heirs of her body, a deed of surviving husband and children conveyed remainder interests held by children. Elkhorn Land & Improv. Co. v. Wallace, 232 Ky. 741 , 24 S.W.2d 560, 1930 Ky. LEXIS 72 ( Ky. 1930 ).

5.Income for Life with Contingent Remainder.

Where will created trust providing that one third (1/3) of income be paid to widow and two thirds (2/3) to children, and corpus was to be divided among children and grandchildren living at time of wife’s death, children could not terminate trust by deeds to their mother, since their interests were contingent, but deeds would be effective to entitle mother to their share of the income. Weisser's Trustee v. Mulloy, 276 Ky. 427 , 124 S.W.2d 496, 1939 Ky. LEXIS 535 ( Ky. 1939 ).

6.Homestead Right.

Deed of widow passed only her homestead right and not a fee simple. Howard v. Mitchell, 268 Ky. 429 , 105 S.W.2d 128, 1936 Ky. LEXIS 775 ( Ky. 1936 ).

7.Lessee.

Deed by tenant in possession in premises under a lease could convey only his tenancy. Fordson Coal Co. v. Wells, 245 Ky. 291 , 53 S.W.2d 564, 1932 Ky. LEXIS 591 ( Ky. 1932 ).

8.Lessors.

Where lessors had inherited an undivided interest, and had purchased an additional interest, that lease embraced both interests. Preston's Heirs v. Preston, 279 Ky. 401 , 130 S.W.2d 797, 1939 Ky. LEXIS 286 ( Ky. 1939 ).

9.Minerals.

A lease of minerals underlying land surface is a sale of a portion of the realty. Mills v. Mills, 275 Ky. 431 , 121 S.W.2d 962, 1938 Ky. LEXIS 450 ( Ky. 1938 ).

Lease of minerals underlying land surface, by persons owning undivided fourth of land in fee and life estate in other three fourths (3/4), was valid, but lessors were entitled only to one fourth (1/4) of royalties and income from remaining three fourths (3/4) of royalties, the corpus to be preserved for remaindermen. Mills v. Mills, 275 Ky. 431 , 121 S.W.2d 962, 1938 Ky. LEXIS 450 ( Ky. 1938 ).

Where deed purported to convey entire fee simple but, at time of conveyance, grantor actually owned only an undivided interest in the land, “reservation” of mineral rights in favor of grantor was effective only as to undivided portion of mineral rights equal to grantor’s undivided interest in land. Clark v. Pauley, 291 Ky. 637 , 165 S.W.2d 161, 1942 Ky. LEXIS 284 ( Ky. 1942 ).

Evidence was insufficient to establish a prior claim to mineral rights where it was claimed title bond or option to plaintiff’s predecessor was lost by fire and the usual length of time for such options was three (3) to six (6) months and, if an option or title bond had existed, it would have expired prior to the deeds to defendants. Federal Oil, Gas & Coal Co. v. Maynard, 63 F. Supp. 436, 1943 U.S. Dist. LEXIS 1643 (D. Ky. 1943 ), aff'd, 152 F.2d 372, 1945 U.S. App. LEXIS 2290 (6th Cir. Ky. 1945 ).

10.Covenant of Warranty.

A vendee, holding land under covenant of general warranty, may not be ousted from the estate by parties claiming under vendor who received from vendor a gratuitous estate of greater value than they seek to recover from vendee, regardless of when claimants received estate. Federal Gas, Oil & Coal Co. v. Maynard, 152 F.2d 372, 1945 U.S. App. LEXIS 2290 (6th Cir. Ky. 1945 ).

11.Exception from Warranty Clause.

The fact that grantor in deed excepted a portion of the conveyed property from the warranty clause did not constitute an admission that grantor did not claim title to such portion. Conyers' Adm'x v. McGee, 294 Ky. 382 , 171 S.W.2d 450, 1943 Ky. LEXIS 436 ( Ky. 1943 ).

12.Rights of Vendee.

A vendee in possession under a general warranty deed must sue at law for any breach of warranty and may not have equitable relief of cancellation in absence of extraordinary circumstances, but a vendee not in possession, and who cannot lawfully be put in possession because vendor had no title, may sue in equity for rescission. Creech v. Jenkins, 276 Ky. 163 , 123 S.W.2d 267, 1938 Ky. LEXIS 540 ( Ky. 1938 ).

Where defendant purchased one (1) tract of land from plaintiff and an adjoining tract from group of heirs one of whom was plaintiff, and there was a deficiency of acreage in tract conveyed by plaintiff because of overlapping of tract conveyed by heirs, defendant could recover from plaintiff for deficiency notwithstanding fact that defendant knew of deficiency at time of purchasing heirs’ tract. Kentucky Nat'l Park Com. v. Dennison, 281 Ky. 61 , 134 S.W.2d 973, 1939 Ky. LEXIS 9 ( Ky. 1939 ).

Cited:

Kerr v. Watkins, 234 Ky. 104 , 27 S.W.2d 679, 1930 Ky. LEXIS 130 ( Ky. 1930 ); Sirls v. Jordan, 625 S.W.2d 106, 1981 Ky. App. LEXIS 301 (Ky. Ct. App. 1981).

Research References and Practice Aids

Cross-References.

Assignment by tenant forfeits estate, when, KRS 383.180 .

No forfeiture if tenant for years conveys greater estate, KRS 383.180 .

Kentucky Law Journal.

Roberts, Kentucky Decisions on Future Interests, 1933-1937, 26 Ky. L.J. 269 (1938).

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

381.160. Purchaser evicted by heir of grantor may recover to extent of estate inherited.

If a deed such as that mentioned in KRS 381.150 , contains a general warranty of the estate it purports to convey, and there is a claimant of the land who has received any estate, real or personal, by gift, advancement, descent, devise or distribution from the vendor, such claimant shall be barred of recovery to the extent of the value of the estate so devised. If, after the claimant has recovered the land from such vendee, or if, after having been required to answer, he has denied the reception of any estate in either of the modes before named, the estate shall come to him in any such manner, the vendee, his heirs or personal representative, may recover from such claimant upon the warranty the value of such estate or so much thereof as will be sufficient to satisfy his demand.

History. 2352.

NOTES TO DECISIONS

1.Construction.

Under KRS 381.150 and this section, it is not material whether the conveyance by the vendor be before or after the claimant of the estate so conveyed has received from the vendor property by gift, advancement, devise, descent or distribution. Foreman v. Lloyd, 156 Ky. 772 , 162 S.W. 83, 1914 Ky. LEXIS 196 ( Ky. 1914 ). See Ball v. Wasioto & B. M. R. Co., 157 Ky. 166 , 162 S.W. 810, 1914 Ky. LEXIS 247 ( Ky. 1914 ); Blankenship v. Haldeman, 226 Ky. 57 , 10 S.W.2d 469, 1928 Ky. LEXIS 21 ( Ky. 1928 ).

This section is based on principle that a grantor conveying land with a covenant of general warranty is liable, upon an eviction of the grantee, for damages for breach of the covenant with a resulting diminution of the grantor’s estate, and therefore persons who receive property from the grantor by way of gift, devise or descent should, in effect, be required to assume the grantor’s liability for damages to the extent of the property they receive from grantor if they seek to evict the grantee. Inman v. Coburn, 249 S.W.2d 816, 1952 Ky. LEXIS 881 ( Ky. 1952 ).

2.Application.

This section and KRS 381.150 did not apply where a father conveyed his land in unequal portions to his sons, but did not convey a greater estate to first son than he had, and the grantee of the second son who received the larger portion claimed part of the land held by the first son. Steele v. Ferrell, 288 Ky. 392 , 156 S.W.2d 153, 1941 Ky. LEXIS 100 ( Ky. 1941 ).

3.Gift or Advancement.

The receiving of proceeds of life insurance policy was a gift or advancement under this section. Justice v. Mead, 220 Ky. 638 , 295 S.W. 976, 1927 Ky. LEXIS 587 ( Ky. 1927 ).

4.Recovery of Land from Vendee.

Children could recover land descended from their father, which their mother attempted to convey in fee after death of their father, where children had done nothing to forfeit their interest. Howton v. Roberts, 49 S.W. 190, 20 Ky. L. Rptr. 1327 (1899).

Where a vendor conveys with covenant of general warranty a greater interest in land than he possesses and thereafter a claimant of the land who has received any estate by gift, advancement, descent, devise or distribution from the vendor demands to recover the land from the vendee, he will be barred to recover to the extent of the value of the estate so received. Foreman v. Lloyd, 156 Ky. 772 , 162 S.W. 83, 1914 Ky. LEXIS 196 ( Ky. 1914 ). See Ball v. Wasioto & B. M. R. Co., 157 Ky. 166 , 162 S.W. 810, 1914 Ky. LEXIS 247 ( Ky. 1914 ); Blankenship v. Haldeman, 226 Ky. 57 , 10 S.W.2d 469, 1928 Ky. LEXIS 21 ( Ky. 1928 ).

A vendee, holding land under covenant of general warranty, may not be ousted from the estate by parties claiming under vendor who received from vendor a gratuitous estate of greater value than they seek to recover from vendee, regardless of when claimants received estate. Federal Gas, Oil & Coal Co. v. Maynard, 152 F.2d 372, 1945 U.S. App. LEXIS 2290 (6th Cir. Ky. 1945 ).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, Kentucky’s Doctrine of Advancements: A Time for Reform, 75 Ky. L.J. 341 (1986-87).

381.170. Consideration paid by other than grantee — Effect.

When a deed is made to one (1) person, and the consideration is paid by another no use or trust results in favor of the latter unless the grantee takes a deed in his own name without the consent of the person paying the consideration, or unless the grantee in violation of a trust purchases the lands deeded with the effects of another person. Such deeds are fraudulent as against the existing debts and liabilities of the person paying the consideration.

History. 2353, 2354.

NOTES TO DECISIONS

1.Purpose.

This section intended to preserve a constructive trust, implied by equity in behalf of one who has been imposed upon by another, in order to work out justice and in spite of the intention of one of the parties, and where some element of fraud is involved. Wright v. Yates, 140 Ky. 283 , 130 S.W. 1111, 1910 Ky. LEXIS 230 ( Ky. 1910 ). See Huff v. Byers, 209 Ky. 375 , 272 S.W. 897, 1925 Ky. LEXIS 505 ( Ky. 1925 ).

2.Construction.

This section abolishes the old equitable doctrine of resulting trusts except in two (2) cases: (1) where the grantee takes a deed without the consent of the person paying the consideration, and (2) where the grantee in violation of some trust, purchases the deeded lands with the effects of another person. Foushee v. Foushee, 163 Ky. 524 , 173 S.W. 1115, 1915 Ky. LEXIS 241 ( Ky. 1915 ). See Neel's Ex'r v. Noland's Heirs, 166 Ky. 455 , 179 S.W. 430, 1915 Ky. LEXIS 718 ( Ky. 1915 ); Roche v. Roche, 188 Ky. 327 , 222 S.W. 86, 1920 Ky. LEXIS 280 ( Ky. 1920 ); Acker v. Henry Clay Oil Co., 196 Ky. 50 8, 245 S.W. 6, 1922 Ky. LEXIS 548 ( Ky. 1922 ); Bybee v. Wilson, 196 Ky. 644 , 245 S.W. 295, 1922 Ky. LEXIS 579 ( Ky. 1922 ); Webb v. Webb, 200 Ky. 488 , 255 S.W. 137, 1923 Ky. LEXIS 142 ( Ky. 1923 ); Williams v. Scott, 216 Ky. 688 , 288 S.W. 672, 1926 Ky. LEXIS 988 ( Ky. 1926 ); Masters v. Masters, 222 Ky. 427 , 300 S.W. 894, 1927 Ky. LEXIS 930 ( Ky. 1927 ); Thrasher v. Craft, 242 Ky. 101 , 45 S.W.2d 827, 1932 Ky. LEXIS 219 ( Ky. 1932 ); Clark v. Smith, 252 Ky. 50 , 66 S.W.2d 93, 1933 Ky. LEXIS 1009 ( Ky. 1933 ); McFarland v. McFarland, 263 Ky. 434 , 92 S.W.2d 785, 1936 Ky. LEXIS 203 ( Ky. 1936 ).

Where one entrusts funds to another to be invested for his benefit, and the latter, without the consent of the former and in fraud of the former’s rights, purchases property and has the title thereto put in the name of a third person, a constructive trust will result in favor of the person who has been defrauded. Foushee v. Foushee, 163 Ky. 524 , 173 S.W. 1115, 1915 Ky. LEXIS 241 ( Ky. 1915 ).

This section changed the rule that when a deed is made conveying land to one and the consideration is paid by another, a trust results in favor of the latter. Richardson v. Webb, 281 Ky. 201 , 135 S.W.2d 861, 1940 Ky. LEXIS 8 ( Ky. 1940 ).

The kind of equitable resulting trust abolished by this section is one arising upon the naked fact that one furnishes the consideration to buy land while the title thereto is taken by another, without any agreement as to the use or the trust. Gibson v. Gibson, 249 S.W.2d 53, 1952 Ky. LEXIS 796 ( Ky. 1952 ).

This section was not intended to affect the doctrine that equity will follow a fund and compel restitution as long as it can be identified and followed. Glass v. Gutman, 268 S.W.2d 410, 1954 Ky. LEXIS 898 ( Ky. 1954 ).

The common-law resulting trust in real estate has been abrogated, with some exceptions, by this section and the same rule has been impliedly extended to personal property. Bryant's Adm'r v. Bryant, 269 S.W.2d 219, 1954 Ky. LEXIS 968 ( Ky. 1954 ).

3.Application.

This section applies only to deeds and does not apply to contracts for equitable interests; therefore, where purchaser of real estate at a commissioner’s sale paid part of the purchase price and signed an order for the commissioner to make the deed to a third party, he could show a parol agreement that the deed was not absolute but was only a mortgage to secure third party for moneys advanced purchaser to make payments. McConnell v. Gentry, 99 S.W. 278, 30 Ky. L. Rptr. 548 (1907).

This section is inapplicable where there was an express parol promise by one to hold the legal title to the land in trust and for the use of another who furnished the consideration. Gibson v. Gibson, 249 S.W.2d 53, 1952 Ky. LEXIS 796 ( Ky. 1952 ).

The kind of equitable resulting trust abolished by this section is one arising upon the naked fact that one furnishes the consideration to buy land while the title thereto is taken by another without any agreement as to the use or the trust and this section has no application where there is an express promise by one to hold the legal title to the land in trust and for the use of another who furnished the consideration. Evans v. Payne, 258 S.W.2d 919, 1953 Ky. LEXIS 896 ( Ky. 1953 ).

This section does not apply where there is an agreement, express or implied, that legal title would be held in trust or for the use of the person who furnished the money. Wilson v. St. Clair, 286 S.W.2d 554, 1955 Ky. LEXIS 106 ( Ky. 1955 ).

The resulting trust abolished by this section is one arising from the naked fact that a person has furnished consideration to buy land while title to that land is taken by another, without any agreement as to use and the statute has no application when there is an express parol agreement establishing a trust. Horn v. Horn, 562 S.W.2d 319, 1978 Ky. App. LEXIS 470 (Ky. Ct. App. 1978).

4.Express Trust.

An express trust is voluntarily created by the direct action and declaration of the donor, and as to personalty may be created by parol. Huff v. Byers, 209 Ky. 375 , 272 S.W. 897, 1925 Ky. LEXIS 505 ( Ky. 1925 ).

Facts established a voluntary express trust which was valid and enforceable and not an equitable resulting trust forbidden by this section. Morris v. Thomas, 310 Ky. 501 , 220 S.W.2d 958, 1949 Ky. LEXIS 932 ( Ky. 1949 ).

5.When No Trust Results.

The creation of a trust under the circumstances set out was forbidden by this section. Watt v. Watt, 39 S.W. 48, 19 Ky. L. Rptr. 25 (1897). See Clay v. Clay’s Guardian, 72 S.W. 810, 24 Ky. L. Rptr. 2016 S.W. l810 (1903); Planters' Bank & Trust Co. v. Major, 79 S.W. 264, 25 Ky. L. Rptr. 1969 (1904); Fields' Heirs v. Napier, 80 S.W. 1110, 26 Ky. L. Rptr. 240 (1904); Bennett v. Bennett, 137 Ky. 17 , 121 S.W. 495, 1909 Ky. LEXIS 472 ( Ky. 1909 ); Hatfield v. Cline, 143 Ky. 565 , 137 S.W. 212, 1911 Ky. LEXIS 475 ( Ky. 1911 ); Martin v. Franklin, 159 Ky. 816 , 169 S.W. 599, 1914 Ky. LEXIS 906 ( Ky. 1914 ); Foushee v. Foushee, 163 Ky. 524 , 173 S.W. 1115, 1915 Ky. LEXIS 241 ( Ky. 1915 ); Deaver-Kennedy Co. v. Cooper, 189 Ky. 366 , 224 S.W. 1053, 1920 Ky. LEXIS 433 ( Ky. 1920 ); Bybee v. Wilson, 196 Ky. 644 , 245 S.W. 295, 1922 Ky. LEXIS 579 ( Ky. 1922 ); Crouch v. Mason, 199 Ky. 371 , 251 S.W. 182, 1923 Ky. LEXIS 842 ( Ky. 1923 ); Mullins v. Mullins, 203 Ky. 652 , 262 S.W. 1085, 1924 Ky. LEXIS 975 ( Ky. 1924 ); Isaacs v. Isaacs, 206 Ky. 540 , 267 S.W. 1104, 1925 Ky. LEXIS 1001 ( Ky. 1925 ); Barbee v. Harvey, 214 Ky. 461 , 283 S.W. 442, 1926 Ky. LEXIS 369 ( Ky. 1926 ); Ewing v. Clore, 219 Ky. 329 , 292 S.W. 824, 1927 Ky. LEXIS 328 ( Ky. 1927 ); Bishop v. Simpson, 224 Ky. 289 , 6 S.W.2d 253, 1928 Ky. LEXIS 588 ( Ky. 1928 ); Mullins v. Robinson, 225 Ky. 648 , 9 S.W.2d 988, 1928 Ky. LEXIS 836 ( Ky. 1928 ); Shields v. Parsons, 230 Ky. 143 , 18 S.W.2d 961, 1929 Ky. LEXIS 35 ( Ky. 1929 ); Trimble v. Kentucky River Coal Corp., 235 Ky. 301 , 31 S.W.2d 367, 1930 Ky. LEXIS 35 2 ( Ky. 1930 ); Missionary Board of Brethren Church v. Trustees of Brethren Church, 247 Ky. 398 , 57 S.W.2d 25, 1932 Ky. LEXIS 874 ( Ky. 1932 ); McFarland v. McFarland, 263 Ky. 434 , 92 S.W.2d 785, 1936 Ky. LEXIS 203 ( Ky. 1936 ).

The rule is well settled in Kentucky that if one, in order to defraud his creditors, conveys or has conveyed property to another in secret trust for his own use, he cannot afterwards reclaim the property if the vendee chooses to hold it. Layne v. Layne, 90 S.W. 555, 28 Ky. L. Rptr. 810 (1906). See Ray v. Thomas, 140 Ky. 570 , 131 S.W. 503, 1910 Ky. LEXIS 336 ( Ky. 1910 ).

Alleged trust, as asserted on lands purchased with partnership funds, would be of the character condemned by this section. Bennett v. Bennett, 137 Ky. 17 , 121 S.W. 495, 1909 Ky. LEXIS 472 ( Ky. 1909 ).

The mere fact that the purchase price was paid by the wife is not sufficient evidence to overturn the terms of a deed, as this would be entirely consistent with the taking of title jointly with a survivorship clause. Masters v. Masters, 222 Ky. 427 , 300 S.W. 894, 1927 Ky. LEXIS 930 ( Ky. 1927 ).

Although it might be true that husband paid for the one-half interest in property which was conveyed to wife, yet it was her property free of any trust, and, if she made an agreement that she would make a certain devise of her one-half interest, the agreement to that extent was within the statute of frauds and unenforceable. Shrader's Ex'r v. Shrader, 228 Ky. 374 , 15 S.W.2d 246, 1929 Ky. LEXIS 555 ( Ky. 1929 ).

There is no resulting trust unless the grantee takes the title without the consent of the person paying the consideration, or purchases the property with the funds of the other in violation of a trust. Hall v. Walton, 291 Ky. 779 , 165 S.W.2d 806, 1942 Ky. LEXIS 325 ( Ky. 1942 ).

Alleged agreement at foreclosure sale whereby defendant engaged attorney to bid in property for her was unenforceable against attorney who purchased property in his own name, where court had properly ordered that neither defendant nor anyone for her should be allowed to bid at sale. Barnell v. Jacobs, 304 Ky. 374 , 200 S.W.2d 940, 1947 Ky. LEXIS 657 ( Ky. 1947 ).

Constructive trusts never arise except where the holder of the legal title obtained it through fraud, misrepresentation, concealments, undue influence, duress or some other wrongful act whereby another is deprived of the title to his property and infant vendees could not and did not obtain the legal title which their father vested in them through any such methods as is necessary to create a constructive trust. Dotson v. Dotson, 307 Ky. 106 , 209 S.W.2d 852, 1948 Ky. LEXIS 698 ( Ky. 1948 ). See Lowe v. Lowe, 312 Ky. 640 , 229 S.W.2d 442, 1950 Ky. LEXIS 728 ( Ky. 1950 ).

Testimony did not support the claim of a resulting trust where there was no competent testimony that son furnished the consideration for the purchase of the lot nor any evidence the title was taken in the name of his father without his consent. Moore v. Gaines, 308 Ky. 223 , 213 S.W.2d 990, 1948 Ky. LEXIS 878 ( Ky. 1948 ).

Where, before corporation came into being, defendant bought real estate and erected a building thereon for the use of the corporation and title to the land was kept in himself and another who both became directors of the corporation and collected rent from the corporation, this section was not violated because the corporation was not in existence at the time of the purchase and no trust resulted. R-K Distributing Co. v. Raible, 317 S.W.2d 488, 1958 Ky. LEXIS 91 ( Ky. 1958 ).

6.— Consent to Taking of Title.

Heirs of wife cannot recover land bought with her money but deeded to husband with her knowledge and consent. Martin v. Franklin, 159 Ky. 816 , 169 S.W. 599, 1914 Ky. LEXIS 906 ( Ky. 1914 ).

Under this section, no trust results for benefit of wife who consents to husband taking title to himself on land purchased with her money. Martin v. Franklin, 159 Ky. 816 , 169 S.W. 599, 1914 Ky. LEXIS 906 ( Ky. 1914 ). See Foushee v. Foushee, 163 Ky. 524 , 173 S.W. 1115, 1915 Ky. LEXIS 241 ( Ky. 1915 ); Dalzell v. Dalzell, 170 Ky. 297 , 185 S.W. 1107, 1916 Ky. LEXIS 49 ( Ky. 1916 ); Mullins v. Mullins, 203 Ky. 652 , 262 S.W. 1085, 1924 Ky. LEXIS 975 ( Ky. 1924 ); Cooksey v. Tolliver, 208 Ky. 160 , 270 S.W. 719, 1925 Ky. LEXIS 238 ( Ky. 1925 ).

Even though a wife pays the entire consideration for property deeded to herself and husband jointly, she takes only an undivided one-half interest therein as a tenant in common, without any trust resulting in her favor as to husband’s half interest, where she knew of or consented to the property being conveyed in such manner. Roche v. Roche, 188 Ky. 327 , 222 S.W. 86, 1920 Ky. LEXIS 280 ( Ky. 1920 ). See Thrasher v. Craft, 242 Ky. 101 , 45 S.W.2d 827, 1932 Ky. LEXIS 219 ( Ky. 1932 ); Mastin v. Mastin's Adm'r, 243 Ky. 830 , 50 S.W.2d 77, 1932 Ky. LEXIS 207 ( Ky. 1932 ); Preston v. Preston's Adm'x, 245 Ky. 552 , 53 S.W.2d 957, 1932 Ky. LEXIS 633 (Ky. 1932).

Resulting trust for more than half of land did not result in favor of wife where land cost $775 and wife paid $425 and the balance was paid by the husband and wife knew the land had been conveyed to her and her husband jointly. Richardson v. Webb, 281 Ky. 201 , 135 S.W.2d 861, 1940 Ky. LEXIS 8 ( Ky. 1940 ).

Where husband and wife purchased property, each paying half of purchase price, and title was taken in husband’s name by agreement, no trust resulted in favor of wife. Hall v. Walton, 291 Ky. 779 , 165 S.W.2d 806, 1942 Ky. LEXIS 325 ( Ky. 1942 ).

Where wife who advanced money for purchase of property consented to title being taken in husband’s name, no trust resulted in her favor. Kitchen v. Fischer, 293 Ky. 787 , 170 S.W.2d 592, 1943 Ky. LEXIS 712 ( Ky. 1943 ).

Where husband and wife gave contradictory testimony as to which of them paid purchase price of realty conveyed by third parties to husband’s infant stepdaughter, but there was no disagreement concerning promise of wife to have deed made to husband at a later date, in the absence of a showing of wrongful act or unconscionable conduct on part of stepdaughter, the court properly refused to set aside deed to stepdaughter on the theory of a constructive trust in favor of the husband when wife refused to fulfill her promise. Lowe v. Lowe, 312 Ky. 640 , 229 S.W.2d 442, 1950 Ky. LEXIS 728 ( Ky. 1950 ).

Where proof failed to show that even if wife had paid the consideration, the title was taken without her consent, no trust would result under this section. Mullins v. Mullins, 247 S.W.2d 527, 1952 Ky. LEXIS 716 ( Ky. 1952 ).

No trust results unless the person furnishing the consideration did not consent to the other person’s taking title in his own name. Glass v. Gutman, 268 S.W.2d 410, 1954 Ky. LEXIS 898 ( Ky. 1954 ).

7.— Consideration Not Furnished.

Where a principal employs an agent, by a parol agreement, to buy land, and the agent pays the consideration out of his own funds and takes the conveyance in his own name, no resulting trust will arise and the case will fall within the statute of frauds, and the principal cannot compel the agent to convey the land to him. Day v. Amburgey, 147 Ky. 123 , 143 S.W. 1033, 1912 Ky. LEXIS 215 ( Ky. 1912 ).

In action to impress a trust on a number of tracts of real estate owned by appellee, the evidence failed to establish a resulting trust under this section where appellee proved he had money and property of his own other than the profits of the partnership and that the real estate in question was purchased with his own personal funds and appellant failed to assert her rights for over two (2) years. Knight v. Rowland, 307 Ky. 18 , 209 S.W.2d 728, 1948 Ky. LEXIS 676 ( Ky. 1948 ).

8.Constructive Trusts.

Whenever the legal title to property has been obtained through any circumstance which renders it unconscientious for the holder of legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never, perhaps, have had any legal estate therein; this principle is not affected by law. Graham v. King, 96 Ky. 339 , 24 S.W. 430, 16 Ky. L. Rptr. 440 , 1893 Ky. LEXIS 147 ( Ky. 1893 ).

A constructive trust is a way of compelling the parties to do what they agreed to do, and to undo that which in fraud has been done in violation of an agreement. Wright v. Yates, 140 Ky. 283 , 130 S.W. 1111, 1910 Ky. LEXIS 230 ( Ky. 1910 ). See Huff v. Byers, 209 Ky. 375 , 272 S.W. 897, 1925 Ky. LEXIS 505 ( Ky. 1925 ).

A constructive trust will not be enforced against a stranger not participating in the fraud and not under legal obligation or duty to the complainant. Wright v. Yates, 140 Ky. 283 , 130 S.W. 1111, 1910 Ky. LEXIS 230 ( Ky. 1910 ). See Huff v. Byers, 209 Ky. 375 , 272 S.W. 897, 1925 Ky. LEXIS 505 ( Ky. 1925 ).

Where husband turned earnings over to wife, under agreement that she was to keep and invest them for him, she to be entitled to them only if she survived him, wife was a constructive trustee for the benefit of husband. Hull v. Simon, 278 Ky. 442 , 128 S.W.2d 954, 1939 Ky. LEXIS 456 ( Ky. 1939 ).

A constructive trust is one not created by any words either expressly or impliedly evidencing a direct intention to create a trust, but by the construction of equity in order to satisfy the demands of justice. They are entirely invitum and forced upon the conscience of the trustee for the purpose of working out right and justice or frustrating fraud. Long v. Reiss, 290 Ky. 198 , 160 S.W.2d 668, 1942 Ky. LEXIS 393 ( Ky. 1942 ).

To raise the trust, it must affirmatively appear that title was taken in the name of the alleged trustee in violation of an agreement, or without the consent of the person paying the consideration. Sewell v. Sewell, 260 S.W.2d 643, 1953 Ky. LEXIS 977 ( Ky. 1953 ).

9.— Deed Without Consent of Payor of Consideration.

Where grantee takes a deed in his own name without the consent of the person paying the consideration, a trust will be established and enforced. Graham v. King, 96 Ky. 339 , 24 S.W. 430, 16 Ky. L. Rptr. 440 , 1893 Ky. LEXIS 14 7 ( Ky. 1 893). See Harlan v. Eilke, 100 Ky. 642 , 38 S.W. 1094, 18 Ky. L. Rptr. 1096 , 1897 Ky. LEXIS 40 ( Ky. 1 897); Neel v. Moore, 39 S.W. 1042, 19 Ky. L. Rptr. 918 (1897); Straeffer v. Rodman, 146 Ky. 1, 141 S.W. 742, 1911 Ky. LEXIS 761 ( Ky. 1911 ); Miller v. McLin, 147 Ky. 248 , 143 S.W. 1008, 1912 Ky. LEXIS 202 ( Ky. 1912 ); Foushee v. Foushee, 163 Ky. 524 , 173 S.W. 1115, 1915 Ky. LEXIS 241 ( Ky. 1915 ); Roche v. Roche, 188 Ky. 327 , 222 S.W. 86, 1920 Ky. LEXIS 280 ( Ky. 1920 ); Deaver-Kennedy Co. v. Cooper, 189 Ky. 366 , 224 S.W. 1053, 1920 Ky. LEXIS 433 ( Ky. 1920 ); Huff v. Byers, 209 Ky. 375 , 272 S.W. 897, 1925 Ky. LEXIS 505 ( Ky. 1925 ); Phillips v. Bowles, 209 Ky. 580 , 273 S.W. 85, 1925 Ky. LEXIS 549 ( Ky. 1925 ); Holliday v. Holliday, 238 Ky. 522 , 38 S.W.2d 436, 1931 Ky. LEXIS 276 ( Ky. 1931 ); Broyles v. Broyles, 271 Ky. 461 , 112 S.W.2d 686, 1938 Ky. LEXIS 14 ( Ky. 1938 ).

Where mother’s money was used to purchase property to which title was taken without her consent in her daughter’s name by daughter’s husband, the property belongs to the mother and the daughter holds the title under a constructive trust and not under a resulting trust now inhibited by law. Graham v. King, 96 Ky. 339 , 24 S.W. 430, 16 Ky. L. Rptr. 440 , 1893 Ky. LEXIS 147 ( Ky. 1893 ).

Father who took title in himself to land purchased with son’s money, without knowledge of son, held in trust for son, and this section does not prevent the trust from being enforced. Harlan v. Eilke, 100 Ky. 642 , 38 S.W. 1094, 18 Ky. L. Rptr. 1096 , 1897 Ky. LEXIS 40 ( Ky. 1897 ).

A distinction is made where one buys land at a judicial sale under a parol agreement to purchase for another, and fails to convey in accordance with the agreement; this class of cases is not within the law of frauds, and a trust will arise where the promisee furnished the purchase money or had an actual interest in the estate or a bona fide claim thereto. Day v. Amburgey, 147 Ky. 123 , 143 S.W. 1033, 1912 Ky. LEXIS 215 ( Ky. 1912 ).

This section expressly recognizes that a trust may result if a grantee takes title without consent of the person paying the consideration. Appleby v. Buck, 351 S.W.2d 494, 1961 Ky. LEXIS 165 ( Ky. 1961 ).

10.— Purchase with Effects of Another.

Where administrator purchased land with proceeds from estate and took title in himself, the heirs can recover interest in the land purchased in violation of trust. Stone v. Burge, 74 S.W. 250, 24 Ky. L. Rptr. 2424 , 1903 Ky. LEXIS 487 (Ky. Ct. App. 1903).

Where father gave to daughter the money which paid for land, as an advancement out of his estate, and it was so accepted by her, it was her money that paid for land and an enforceable constructive trust for daughter was created by father’s parol promise to hold legal title in trust for her; such transaction is not a resulting trust such as was abolished by this section. Erdman v. Kenney, 159 Ky. 509 , 167 S.W. 685, 1914 Ky. LEXIS 828 ( Ky. 1914 ).

Allegations that defendants, in violation of partnership and corporate agreements with plaintiff, took title in their own name to property which was purchased with money advanced by plaintiff for the purpose of acquiring such property for the partnership or corporation were sufficient to establish a cause of action based upon a constructive trust. Schumann v. Crook, 293 Ky. 331 , 168 S.W.2d 1002, 1943 Ky. LEXIS 609 ( Ky. 1943 ).

Where fiduciary uses trust funds to purchase land in his own name, in violation of trust, the land is impressed with the trust. Baker v. McIntosh, 294 Ky. 527 , 172 S.W.2d 29, 1943 Ky. LEXIS 466 ( Ky. 1943 ).

11.— Establishment.

A trust in land may be created by parol under certain conditions. Sherley v. Sherley, 97 Ky. 512 , 31 S.W. 275, 17 Ky. L. Rptr. 450 , 1895 Ky. LEXIS 223 ( Ky. 1895 ). See Smith v. Smith, 121 S.W. 1002, 1909 Ky. LEXIS 491 (Ky. Ct. App. 1909); Patrick v. Prater, 144 Ky. 771 , 139 S.W. 938, 1911 Ky. LEXIS 716 ( Ky. 1911 ); May v. May, 161 Ky. 114 , 170 S.W. 537, 1914 Ky. LEXIS 29 ( Ky. 1914 ); Vizard Inv. Co. v. York, 167 Ky. 634 , 181 S.W. 370, 1916 Ky. LEXIS 477 ( Ky. 1916 ); Best v. Melcon, 183 Ky. 785 , 210 S.W. 662, 1919 Ky. LEXIS 568 ( Ky. 1919 ); Meadors v. Meadors' Admr., 192 Ky. 457 , 233 S.W. 1053, 1921 Ky. LEXIS 98 (Ky. Ct. App. 1921).

Under this section a parol agreement of the grantee to hold for the use and trust of the one furnishing the consideration is valid and enforceable. Patrick v. Prater, 144 Ky. 771 , 139 S.W. 938, 1911 Ky. LEXIS 716 ( Ky. 1911 ).

12.— — Evidence.

Evidence to establish a trust may be by parol, but it must be clear and convincing, and, if wholly by parol, it should be received with great caution, especially to raise a trust between husband and wife. May v. May, 161 Ky. 114 , 170 S.W. 537, 1914 Ky. LEXIS 29 ( Ky. 1914 ). See Deaver-Kennedy Co. v. Cooper, 189 Ky. 366 , 224 S.W. 1053, 1920 Ky. LEXIS 433 ( Ky. 1920 ); Lacy v. Layne, 190 Ky. 667 , 228 S.W. 1, 1921 Ky. LEXIS 482 ( Ky. 1921 ); Deboe v. Brown, 198 Ky. 275 , 248 S.W. 855, 1923 Ky. LEXIS 436 ( Ky. 1923 ); Williams v. Scott, 216 Ky. 688 , 288 S.W. 672, 1926 Ky. LEXIS 988 ( Ky. 1926 ); Masters v. Masters, 222 Ky. 427 , 300 S.W. 894, 1927 Ky. LEXIS 930 ( Ky. 1927 ).

In order to establish a trust by operation of law, the proof must be of the most convincing character. May v. May, 161 Ky. 114 , 170 S.W. 537, 1914 Ky. LEXIS 29 ( Ky. 1914 ). See Neel's Ex'r v. Noland's Heirs, 166 Ky. 455 , 179 S.W. 430, 1915 Ky. LEXIS 718 ( Ky. 1915 ); Deaver-Kennedy Co. v. Cooper, 189 Ky. 366 , 224 S.W. 1053, 1920 Ky. LEXIS 433 ( Ky. 1920 ); Webb v. Webb, 200 Ky. 488 , 255 S.W. 137, 1923 Ky. LEXIS 142 ( Ky. 1923 ); Cooksey v. Tolliver, 208 Ky. 160 , 270 S.W. 719, 1925 Ky. LEXIS 238 ( Ky. 1925 ); Masters v. Masters, 222 Ky. 427 , 300 S.W. 894, 1927 Ky. LEXIS 930 ( Ky. 1927 ); Holliday v. Holliday, 238 Ky. 522 , 38 S.W.2d 436, 1931 Ky. LEXIS 276 ( Ky. 1931 ); Thrasher v. Craft, 242 Ky. 101 , 45 S.W.2d 827, 1932 Ky. LEXIS 219 ( Ky. 1932 ); Clark v. Smith, 252 Ky. 50 , 66 S.W.2d 93, 1933 Ky. LEXIS 1009 ( Ky. 1933 ).

Where the conduct between the parties and the circumstances under which property was purchased was sufficiently clear and convincing, a deed will be reformed and a trust established. Williams v. Scott, 216 Ky. 688 , 288 S.W. 672, 1926 Ky. LEXIS 988 ( Ky. 1926 ).

Under certain circumstances transactions between husband and wife will be scrutinized closely, and the wife will be required to rebut inferences created by the badges of fraud that have been shown. Campbell v. First Nat'l Bank, 234 Ky. 697 , 27 S.W.2d 975, 1930 Ky. LEXIS 158 ( Ky. 1930 ). See Hoskins v. Hoskins' Trustee in Bankruptcy, 241 Ky. 420 , 44 S.W.2d 302, 1931 Ky. LEXIS 103 ( Ky. 1931 ); Thrasher v. Craft, 242 Ky. 101 , 45 S.W.2d 827, 1932 Ky. LEXIS 219 ( Ky. 1932 ).

Constructive trusts are bottomed on principles akin to the doctrine of equitable estoppel with fraud, active or constructive, as their essential element and, since they arise by operation of law from certain essential facts upon which they rest, they do not come within the statute of frauds requiring duly executed writing for their support and may therefore be established by parol evidence. Clark v. Smith, 252 Ky. 50 , 66 S.W.2d 93, 1933 Ky. LEXIS 1009 ( Ky. 1933 ).

Claim by wife that oil royalty was purchased with her money by her husband who had taken title in his own name in violation of an agreement with him to take title in her name, which claim was not made until after execution sale of royalty, and which was contradicted by bank records, was not sufficiently proven to establish resulting (constructive) trust. Union Bank & Trust Co. v. Rice, 279 Ky. 629 , 131 S.W.2d 493, 1939 Ky. LEXIS 317 ( Ky. 1939 ).

Proof to establish a resulting (constructive) trust must be clear and convincing. Union Bank & Trust Co. v. Rice, 279 Ky. 629 , 131 S.W.2d 493, 1939 Ky. LEXIS 317 ( Ky. 1939 ).

To establish a resulting (constructive) trust under the two (2) exceptions contained in this section, the proof that title was taken in name of nominal purchaser without the consent of real purchaser, or that grantee, in violation of trust, bought land with money or property of another, must be clear and convincing. Richardson v. Webb, 281 Ky. 201 , 135 S.W.2d 861, 1940 Ky. LEXIS 8 ( Ky. 1940 ).

Clear and convincing proof is required to establish a resulting (constructive) trust. Gayheart v. Cox, 305 Ky. 570 , 205 S.W.2d 153, 1947 Ky. LEXIS 873 ( Ky. 1947 ).

The evidence to establish a parol trust in realty must be clear, definite and convincing, and it is closely scrutinized and carefully weighed by courts because its effect is to upset paper title. Evans v. Payne, 258 S.W.2d 919, 1953 Ky. LEXIS 896 ( Ky. 1953 ).

Where a trust is claimed by reason of the consideration having been paid by one (1) person and title taken in the name of another without the consent of the payor, clear and convincing proof is required to establish every element of the trust. Sewell v. Sewell, 260 S.W.2d 643, 1953 Ky. LEXIS 977 ( Ky. 1953 ).

13.Rights of Creditors and Third Parties.

Where title to land purchased with funds of wife is taken by husband in himself, the equitable interest of the wife is not open to attack by creditor of husband, where creditor has not been misled or defrauded by any voluntary act of wife and fails to assert his claim before the completion of wife’s legal title. Young v. Allen, 207 F. 318, 1913 U.S. App. LEXIS 1631 (6th Cir. Ky. 1913 ).

Persons with actual notice of a trust, created by one taking title to land in himself without consent of party paying consideration, cannot resist enforcement of the trust. Webb v. Foley, 49 S.W. 40, 20 Ky. L. Rptr. 1207 (1899).

Where wife’s father paid one third (1/3) of consideration for land purchased by husband under an agreement, to which wife was a party, that she should own one third (1/3) of property, but husband took title in himself, a deed executed by husband after he became insolvent and after death of wife conveying one third (1/3) of property to her infant son by direction of wife’s father will not be set aside at instance of husband’s creditors. Sparks v. Colson, 109 Ky. 711 , 60 S.W. 540, 22 Ky. L. Rptr. 1369 , 1901 Ky. LEXIS 33 ( Ky. 1901 ).

If property is in fact held in secret trust for the party paying the consideration, his creditors may subject it, although their debts were subsequently contracted. O'Neal v. Fenwick, 64 S.W. 952, 23 Ky. L. Rptr. 1219 , 1901 Ky. LEXIS 616 (Ky. Ct. App. 1901). See Deposit Bank v. Rose, 113 Ky. 946 , 69 S.W. 967, 24 Ky. L. Rptr. 732 , 1902 Ky. LEXIS 121 ( Ky. 1902 ); Madden v. Fleming, 266 Ky. 772 , 100 S.W.2d 19, 1936 Ky. LEXIS 744 ( Ky. 1936 ).

Where a wife conveyed land to mother of her husband, in consideration of his obtaining a divorce and surrendering to her the residue of estate, and husband was insolvent at time of conveyance, the conveyance was fraudulent and the property conveyed to mother was subject to husband’s debts. Deposit Bank v. Rose, 113 Ky. 946 , 69 S.W. 967, 24 Ky. L. Rptr. 732 , 1902 Ky. LEXIS 121 ( Ky. 1902 ).

Creditor assailing a conveyance from a brother to his sister, voluntary and without consideration, must show actual fraud in suit on subsequent debt. Hunt v. Nance, 122 Ky. 274 , 92 S.W. 6, 28 Ky. L. Rptr. 1188 , 1906 Ky. LEXIS 58 ( Ky. 1906 ).

Where one pays for property and has the title taken to another for the fraudulent purpose of evading his existing or future obligations, his creditors may subject the property so held by another for him, regardless of enforceable trust between parties. Ahlering's Ex'r v. Speckman, 99 S.W. 973, 30 Ky. L. Rptr. 940 (1907). See Garrison v. W. T. Sistrunk & Co., 213 Ky. 138 , 280 S.W. 928, 1926 Ky. LEXIS 467 ( Ky. 1926 ); First Nat'l Bank v. Short, 234 Ky. 130 , 27 S.W.2d 668, 1930 Ky. LEXIS 124 ( Ky. 1930 ); Burnett's Adm'x v. Farmers' Nat'l Bank, 243 Ky. 760 , 49 S.W.2d 1033, 1932 Ky. LEXIS 196 ( Ky. 1932 ); Vaughn's Trustee in Bankruptcy v. Vaughn, 262 Ky. 181 , 89 S.W.2d 884, 1936 Ky. LEXIS 13 ( Ky. 1936 ); Madden v. Fleming, 266 Ky. 772 , 100 S.W.2d 19, 1936 Ky. LEXIS 744 ( Ky. 1936 ).

Mortgage lien, taken without notice of trust created under this section, was superior to trust, even though mortgage was not acknowledged as required by law. Straeffer v. Rodman, 146 Ky. 1 , 141 S.W. 742, 1911 Ky. LEXIS 761 ( Ky. 1 911).

Where husband bought land with wife’s money and took title in himself, although agreed between them title was to be taken to her, claim of wife was inferior to that of creditors without notice of husband for debts incurred while title was in him. Miller v. McLin, 147 Ky. 248 , 143 S.W. 1008, 1912 Ky. LEXIS 202 ( Ky. 1912 ). See Phillips v. Bowles, 209 Ky. 580 , 273 S.W. 85, 1925 Ky. LEXIS 549 ( Ky. 1925 ); Wilson v. Newberry, 238 Ky. 635 , 38 S.W.2d 695, 1931 Ky. LEXIS 306 ( Ky. 1931 ); Hoskins v. Hoskins' Trustee in Bankruptcy, 241 Ky. 420 , 44 S.W.2d 302, 1931 Ky. LEXIS 103 ( Ky. 1931 ); Thrasher v. Craft, 242 Ky. 101 , 45 S.W.2d 827, 1932 Ky. LEXIS 219 ( Ky. 1932 ); Foster v. Miller, 256 Ky. 48 , 75 S.W.2d 534, 1934 Ky. LEXIS 343 ( Ky. 1934 ).

Bona fide mortgagee of purchaser who received more than he was entitled to at a commissioner’s sale where adjacent tracts were sold and the acreage set forth in the deeds did not correspond with the metes and bounds was not affected by alleged trust in favor of purchaser who received less than he was entitled to receive. Metropolitan Life Ins. Co. v. Hoskins, 273 Ky. 563 , 117 S.W.2d 180, 1937 Ky. LEXIS 705 ( Ky. 1937 ).

Evidence that a father borrowed money from his son to purchase real estate for the family home and placed the title in the son’s name to secure the loan and that the son later advanced substantial sums to pay for improvements, street assessments and taxes but permitted the father to exercise complete control over the property failed to show any fraud or bad faith with respect to the dower rights of father’s second wife. Chalk v. Chalk, 291 Ky. 702 , 165 S.W.2d 534, 1942 Ky. LEXIS 310 ( Ky. 1942 ).

A resulting (constructive) trust is not valid against innocent purchasers without notice. Keaton v. Keaton, 294 Ky. 240 , 171 S.W.2d 260, 1943 Ky. LEXIS 422 ( Ky. 1943 ).

In order to establish a resulting (constructive) trust as against a subsequent purchaser, it must be shown not only that he knew the purchase money was paid by a person other than the grantee in the deed, but also that he knew that the title was taken in the grantee without the consent of the person who paid the consideration. Keaton v. Keaton, 294 Ky. 240 , 171 S.W.2d 260, 1943 Ky. LEXIS 422 ( Ky. 1943 ).

This section cannot be invoked to aid a wife in defeating her husband’s creditors whose debts were contracted in good faith after he took title to the property and without notice of the fact that the wife furnished the money under an agreement that the title would be taken in her name. Keaton v. Keaton, 294 Ky. 240 , 171 S.W.2d 260, 1943 Ky. LEXIS 422 ( Ky. 1943 ).

14.Recovery of Consideration.

At common law, where property was purchased and the conveyance was taken in the name of one (1) person, while the price was paid by another, a trust at once resulted in favor of the party paying the price, and the holder of the legal title became a trustee for him; such a resulting trust has now been abolished by law, and the rule is, where the contract is not illegal, an action will lie upon the implied promise raised by law to refund the money if the party receiving the title refuses to execute the trust or return the money. Deposit Bank v. Rose, 113 Ky. 946 , 69 S.W. 967, 24 Ky. L. Rptr. 732 , 1902 Ky. LEXIS 121 ( Ky. 1902 ). See Brooks v. Brooks, 104 S.W. 392, 31 Ky. L. Rptr. 969 (1907); Smith v. Smith, 121 S.W. 1002, 1909 Ky. LEXIS 491 (Ky. Ct. App. 1909); Wright v. Yates, 140 Ky. 283 , 130 S.W. 1111, 1910 Ky. LEXIS 230 ( Ky. 1910 ); Anderson v. Hart, 260 Ky. 237 , 84 S.W.2d 28, 1935 Ky. LEXIS 434 ( Ky. 1935 ).

This section was not intended to affect the equitable doctrine that equity would follow a fund and compel restitution as long as it could be identified and followed. Board of Trustees v. Postel, 121 Ky. 67 , 88 S.W. 1065, 28 Ky. L. Rptr. 37 , 1905 Ky. LEXIS 178 ( Ky. 1905 ).

While the law forbids a resulting trust, if there be no purpose to defraud, and the party receiving title refuses to execute the trust or return the money, an action will lie upon the implied promise raised by law to refund the money. Howser v. Johnson, 297 Ky. 213 , 179 S.W.2d 897, 1944 Ky. LEXIS 716 ( Ky. 1944 ).

Cited:

Scoggan v. Hoff, 165 F. Supp. 424, 1958 U.S. Dist. LEXIS 3704 (D. Ky. 1958 ); Broyles v. Broyles, 271 Ky. 461 , 112 S.W.2d 686, 1938 Ky. LEXIS 14 ( Ky. 1938 ); Evans v. Caudill, 296 Ky. 460 , 177 S.W.2d 586, 1944 Ky. LEXIS 567 ( Ky. 1944 ).

Research References and Practice Aids

Cross-References.

Preferential or fraudulent transfer of property, KRS 379.070 .

Kentucky Bench & Bar.

Gilman, When Are Pension Benefits Protected From the Claims of Creditors?, Volume 55, No. 1, Winter 1991 Ky. Bench & B. 19.

Kentucky Law Journal.

Gilmer, Current Developments in Resulting Trusts and Constructive Trusts in Kentucky, 42 Ky. L.J. 455 (1954).

Matthews, Kentucky Developments in 1954: Personal and Real Property, Future Interests and Trusts, 44 Ky. L.J. 37 (1955).

Comments, Tax Implications of the Uniform Marriage and Divorce Act: Does the Davis Rule Still Apply in Kentucky? 66 Ky. L.J. 889 (1977-1978).

381.180. Estates in trust subject to debts of beneficiary — Spendthrift trusts excepted — Other exceptions. [Repealed.]

Compiler’s Notes.

This section (2355: amend. Acts 1966, ch. 61, § 1; 1974, ch. 386, § 69; 1990, ch. 220, § 1, effective July 13, 1990; 2012, ch. 59, § 7, effective July 12, 2012) was repealed by Acts 2014, ch. 25, § 118, effective July 15, 2014.

381.190. Sale of realty by trustee by virtue of pledge or deed of trust.

No sale of real estate by a trustee, by virtue of a pledge or deed of trust to secure the payment of debts, shall be valid or pass the title of the property specified in the deed or pledge, unless the sale is in pursuance to a judgment of court, or is made by an assignee under a voluntary deed of assignment, or unless the maker of the deed or pledge joins in a writing evidencing the sale.

History. 2356.

NOTES TO DECISIONS

1.Purpose.

This section was enacted for the benefit of the debtor, and to prevent a sacrifice of his property by his trustee when empowered to sell to pay debts. Abbott v. Yeager, 98 Ky. 424 , 33 S.W. 195, 17 Ky. L. Rptr. 994 , 1895 Ky. LEXIS 71 ( Ky. 1895 ).

2.Construction.

The trustee has no power to sell or pass title except in the manner provided by this section, but, in the absence of such provision, the trustee could sell and pass the fee. Shinkle's Assignees v. Bristow, 95 Ky. 84 , 23 S.W. 670, 15 Ky. L. Rptr. 673 , 1893 Ky. LEXIS 126 ( Ky. 1893 ).

This section does not divest the trustee of title, but limits his right to pass title. Shinkle's Assignees v. Bristow, 95 Ky. 84 , 23 S.W. 670, 15 Ky. L. Rptr. 673 , 1893 Ky. LEXIS 126 ( Ky. 1893 ).

3.Application.

This section had no application to instrument of trust in case under consideration. Bryan v. Dupoyster, 130 F. 83, 1904 U.S. App. LEXIS 4132 (6th Cir. 1904), cert. denied, 198 U.S. 585, 25 S. Ct. 803, 49 L. Ed. 1174, 1905 U.S. LEXIS 1127 (1905) See Glover v. Baum, 25 S.W. 274, 15 Ky. L. Rptr. 688 (1894).

It was not determined whether this section was applicable to deed of trust in case under consideration. Halley v. Winchester Diamond Lodge, 97 Ky. 438 , 30 S.W. 999, 17 Ky. L. Rptr. 293 , 1895 Ky. LEXIS 202 ( Ky. 1895 ). See Butler v. Dillehay Brick Co.'s Trustee, 187 Ky. 224 , 219 S.W. 154, 1920 Ky. LEXIS 107 ( Ky. 1920 ).

Where the wives of grantors joined in conveyance to trustee, it is doubtful if this section is applicable. Halley v. Winchester Diamond Lodge, 97 Ky. 438 , 30 S.W. 999, 17 Ky. L. Rptr. 293 , 1895 Ky. LEXIS 202 ( Ky. 1895 ).

When it appears from face of instrument and transaction itself that writing creating the trust was not intended to be a revocable instrument but designed to pass absolute fee, that the trust might be executed, there is no reason for withholding the power of sale from the trustee. Abbott v. Yeager, 98 Ky. 424 , 33 S.W. 195, 17 Ky. L. Rptr. 994 , 1895 Ky. LEXIS 71 ( Ky. 1895 ).

This section does not apply where grantor has parted with all his title, and given grantee full power to sell the property and pay debts specified, for payment of which debts the property is manifestly regarded as inadequate. Elizabethtown, L. & B. S. R. Co. v. Killen, 50 S.W. 1108, 21 Ky. L. Rptr. 122 (1899).

This section should not be allowed to control the action of trustees in any case where the grantor in the deed of trust has not a fixed and certain interest either in the property conveyed or in the execution of the trust. Gullett v. Bailey, 237 Ky. 151 , 35 S.W.2d 17, 1931 Ky. LEXIS 568 ( Ky. 1931 ).

4.Authority to Mortgage or Sell.

Trustee may, under power contained in deed of trust, mortgage property to secure money for taxes and liens on trust property without complying with this section. Walter v. Brugger, 78 S.W. 419, 25 Ky. L. Rptr. 1597 (1904).

Where will devises property in trust for widow and children, if the trustee is authorized to sell trust property by instrument creating trust, he is privileged to do so, and a court of equity will not interfere if he acts in good faith and with ordinary prudence. Vickers v. Vickers, 189 Ky. 323 , 225 S.W. 44, 1920 Ky. LEXIS 425 ( Ky. 1920 ).

Father and mother could sell land of infant under power of sale in deed conveying the land to the infant without first obtaining consent of the infant or judgment of the court where there was nothing in the deed requiring them to obtain consent of the infant or of the court. Gullett v. Bailey, 237 Ky. 151 , 35 S.W.2d 17, 1931 Ky. LEXIS 568 ( Ky. 1931 ).

The application of law that provided that no sale of real estate by trustee by deed of trust was valid nor did it pass title unless the sale was in pursuance of a judgment of court or the maker of the deed joined in writing evidencing the sale has been construed not to embrace lands held in trust for married women. Whitaker v. Blair, 26 Ky. 236 , 1827 Ky. LEXIS 2 ( Ky. 1827 ).

The application of law that provided that no sale of real estate by trustee by deed or trust was valid nor did it pass title unless the sale was in pursuance of a judgment of court or the maker of the deed joined in writing evidencing the sale has been construed not to embrace assignments for the payment of debts where grantor not only empowers grantee to sell but extracts from him a covenant that he will sell. Ogden v. Grant, 36 Ky. 473 , 1838 Ky. LEXIS 89 ( Ky. 1838 ).

The application of law that provided that no sale of real estate by trustee by deed of trust was valid nor did it pass title unless the sale was in pursuance of a judgment of court or the maker of the deed joined in writing evidencing the sale has been construed not to embrace property conveyed in trust for the benefit of grantor’s children. Shipp v. Bowmar, 44 Ky. 163 , 1844 Ky. LEXIS 99 ( Ky. 1844 ).

Law that provided that no sale of real estate by trustee by deed of trust was valid nor did it pass title unless the sale was in pursuance of a judgment of court or the maker of the deed joined in writing evidencing the sale has been construed not to embrace real property that had been conveyed to trustees in satisfaction of grantor’s debts, and in which he had no further interest. Butler v. Miller, 54 Ky. 617 , 1855 Ky. LEXIS 15 ( Ky. 1855 ).

Law that provided that no sale of real estate by trustee by deed of trust was valid nor did it pass title unless the sale was in pursuance of a judgment of court or the maker of the deed joined in writing evidencing the sale was not intended to be universal in cases of trusts, as its language would seem to imply. Prather v. McDowell, 71 Ky. 46 , 1871 Ky. LEXIS 12 ( Ky. 1871 ).

Law that conferred upon a company the power to sell land in the foreclosure of mortgages, without the intervention of a court, the company having performed no public service to the state, was unconstitutional and void. Kentucky Trust Co. v. Lewis, 82 Ky. 579 , 6 Ky. L. Rptr. 547 , 1885 Ky. LEXIS 21 (Ky. Ct. App. 1885).

5.Right of Dower.

The wife of assignor for benefit of creditors may, by a deed subsequently executed by her alone, pass her potential right of dower. Shinkle's Assignees v. Bristow, 95 Ky. 84 , 23 S.W. 670, 15 Ky. L. Rptr. 673 , 1893 Ky. LEXIS 126 ( Ky. 1893 ).

Cited:

Elkhorn City Land Co. v. Big Sandy Co., 205 Ky. 42 , 265 S.W. 454, 1924 Ky. LEXIS 39 ( Ky. 1924 ); Godley v. Piedmont Land Sales, Inc., 505 F. Supp. 397, 1978 U.S. Dist. LEXIS 15624 (E.D. Ky. 1978 ).

Opinions of Attorney General.

Where a deed of trust, involving real and/or personal property, or a deed of assignment, as a conveyance of real and/or personal property for the benefit of creditors, is filed with the county clerk for record, the state tax of three dollars ($300) must be collected by the county clerk. OAG 85-66 .

381.200. Deeds construed to include buildings and appurtenances — Solar easements.

  1. Every deed, unless an exception is made therein, shall be construed to include all buildings, privileges and appurtenances of every kind attached to the lands therein conveyed.
  2. A solar easement may be obtained for the purpose of ensuring access to direct sunlight. Such easement shall be created in writing and shall be an interest in real property that may be acquired and transferred and shall be subject to the same recording and conveyancing requirements, except that a solar easement shall not be acquired by prescription.

History. 2357: amend. Acts 1982, ch. 341, § 1, effective July 15, 1982.

NOTES TO DECISIONS

1.Water Pumping Equipment.

Conveyance of real estate carried with it title to water pumping equipment attached to well on premises. Thomas v. Holmes, 306 Ky. 632 , 208 S.W.2d 969, 1948 Ky. LEXIS 629 ( Ky. 1948 ).

2.Right to Passway.

Right to passway to public road passes with land, unless expressly reserved. Conley v. Fairchild, 142 Ky. 271 , 134 S.W. 142, 1911 Ky. LEXIS 158 ( Ky. 1911 ).

Where grantor conveyed lot abutting the street and reserved a passway over the lot to a rear lot, the passway became an easement appurtenant to the land and passed by subsequent conveyance of the rear lot, even though not mentioned in the deed. Eastham v. Church, 310 Ky. 93 , 219 S.W.2d 406, 1949 Ky. LEXIS 831 ( Ky. 1949 ).

3.Coal Mining Leasehold.

A coal mining leasehold and its appurtenances are considered as real estate for certain purposes including this section. Commonwealth v. Elkhorn-Piney Coal Min. Co., 241 Ky. 245 , 43 S.W.2d 684, 1931 Ky. LEXIS 51 ( Ky. 1931 ).

4.Easements.

Easements appurtenant pass with the land to which they are appurtenant without mention in the deed. Smith v. Combs, 554 S.W.2d 412, 1977 Ky. App. LEXIS 767 (Ky. Ct. App. 1977).

5.Annexed Chattels.

Chattels annexed to the freehold prior to execution of a deed, if they were essential to its enjoyment, passed by deed although they were not mentioned in deed. Clore v. Lambert, 78 Ky. 224 , 1879 Ky. LEXIS 90 ( Ky. 1879 ).

6.Crops.

It was not error to permit grantor in deed to introduced parol evidence to show that as a part of contract and consideration of sale he was to retain a portion of corn crop on land during year of sale, notwithstanding absence of such reservation from deed. Bourne v. Bourne, 92 Ky. 211 , 17 S.W. 443, 13 Ky. L. Rptr. 545 , 1891 Ky. LEXIS 145 ( Ky. 1891 ).

Opinions of Attorney General.

Where a deed contains an exception of growing timber and where the kinds or species of timber are sufficiently described and where no time for removal of the trees is specified, an effective and separate estate in such timber is excepted from the conveyance and the estate is in the nature of fee simple and is subject to conveyance, devise or inheritance. OAG 72-314 .

Research References and Practice Aids

Kentucky Law Journal.

Gilmer, Formalities and Requisites of a Deed in Kentucky, 43 Ky. L.J. 481 (1955).

Kentucky Law Survey, Catron, Wills, Probate and Real Property Law, 71 Ky. L.J. 333 (1982-83).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Easements, § 316.00.

381.210. Reversion may be sold — Rights and duties of purchaser.

Rights of reversion may be sold and conveyed. The purchaser thereof shall be vested with all the privileges and advantages which attach to the estate in the hands of the reversioner, and shall be subject to all the duties and responsibilities in law or equity which any tenant might assert against the owner of the reversion, the right to which accrued before notice of the transfer.

History. 2359.

NOTES TO DECISIONS

1.Construction.

The right of reversion is recognized by this section. Thurman v. Hudson, 280 S.W.2d 507, 1955 Ky. LEXIS 164 ( Ky. 1955 ). (But see KRS 381.218 .).

2.Conveyance and Sale.

Where deed provided tollhouse and ground should go to grantor’s brothers when use as a tollhouse should cease, such reversionary interest could be sold and conveyed at any time. Patterson v. Patterson, 135 Ky. 339 , 122 S.W. 169, 1909 Ky. LEXIS 293 ( Ky. 1909 ). (But see KRS 381.218 .).

Reversionary interest in oil and gas, to commence in possession after expiration of particular estate granted, was alienable. Elk Horn Coal Corp. v. Casebolt, 38 F.2d 37, 1930 U.S. App. LEXIS 2252 (6th Cir. Ky. 1930 ).

Reversionary right to land for school, should it ever be used for other purposes, could be sold and conveyed. Fayette County Board of Education v. Bryan, 263 Ky. 61 , 91 S.W.2d 990, 1936 Ky. LEXIS 133 ( Ky. 1936 ). (But see KRS 381.218 .).

Every conceivable interest in or claim to real estate, whether present or future, vested or contingent, may be disposed of by deed. Austin v. Calvert, 262 S.W.2d 825, 1953 Ky. LEXIS 1135 ( Ky. 1953 ).

Where deed for an acre to county board of education provided for reversion to grantor when it ceased to be used for a schoolhouse and grantor later conveyed approximately 30 acres, including the one (1) acre, to a subsequent grantee, whatever interest grantor had in the one (1) acre, whether a reversion or a possibility of reverter, passed to the subsequent grantee. Austin v. Calvert, 262 S.W.2d 825, 1953 Ky. LEXIS 1135 ( Ky. 1953 ). (But see KRS 381.218 .).

Where grantor deeded property owned by him to A for life, then to A’s wife for life, with remainder to the life tenants’ children, but if they should die without children, said property “shall revert to the heirs” of grantor, and subsequently grantor executed another deed to the same property to A and his wife which provided that if the life tenants had no children, the remainder should vest in the survivor of the two (2), grantor retained a reversion under the first deed which reversion he deeded away under the second deed and grantor’s heirs did not have a vested remainder under the first deed so fee simple was in the survivor of the life tenants under the second deed. Thurman v. Hudson, 280 S.W.2d 507, 1955 Ky. LEXIS 164 ( Ky. 1955 ).

3.Descent.

The vested reversionary right was an interest which descended to owner’s heirs in absence of testamentary disposition. Fayette County Board of Education v. Bryan, 263 Ky. 61 , 91 S.W.2d 990, 1936 Ky. LEXIS 133 ( Ky. 1936 ). (But see KRS 381.218 .).

4.Release.

Immediate heirs of grantor, after his death, would have power to release provision in deed for reversion in event property should cease to be used for hospital purposes or should be sold other than in a specified manner. Murray Hospital Ass'n v. Mason, 306 Ky. 248 , 206 S.W.2d 936, 1947 Ky. LEXIS 992 ( Ky. 1947 ).

5.Failure to Reserve Reversion.

Where consideration for deed was grantee’s agreement to support grantor for life, but there was no reservation of a right of reentry for breach nor any provision for reversion, the support agreement was not a condition subsequent, and grantor’s heirs could not maintain an action for rescission. Manning v. Street, 279 Ky. 253 , 130 S.W.2d 735, 1939 Ky. LEXIS 266 ( Ky. 1939 ).

6.Possibility of Reverter.

A mere possibility of reverter is not alienable. Young v. Chesapeake & O. R. Co., 291 Ky. 262 , 163 S.W.2d 451, 1942 Ky. LEXIS 199 ( Ky. 1942 ). But see Walker v. Irvine's Ex'r, 225 Ky. 699 , 9 S.W.2d 1020, 1928 Ky. LEXIS 855 ( Ky. 1928 ) and KRS 381.218 .

Where land was conveyed to railroad for use as a right of way for tracks and for establishing a permanent depot, and railroad used part of land for right of way and part for depot, subsequent removal of depot building did not constitute such an abandonment as to work a forfeiture of the portion of the land on which the depot had stood. Young v. Chesapeake & O. R. Co., 291 Ky. 262 , 163 S.W.2d 451, 1942 Ky. LEXIS 199 ( Ky. 1942 ). (But see KRS 381.218 .).

Where land was conveyed to railroad for use for use railroad purposes, heirs of grantor had merely a possibility of reverter which would vest at the time the railroad abandoned use of the property for railroad purposes. Young v. Chesapeake & O. R. Co., 291 Ky. 262 , 163 S.W.2d 451, 1942 Ky. LEXIS 199 ( Ky. 1942 ). (But see KRS 381.218 .).

The possibility of reverter to settlor under an inter vivos trust is not an estate and is inalienable and an attempted transfer of it to a church was ineffectual insofar as it undertook to pass any right or interest to the church, but it had the effect of extinguishing trustor’s possibility of reverter. Department of Revenue v. Kentucky Trust Co., 313 S.W.2d 401, 1958 Ky. LEXIS 256 ( Ky. 1958 ). (But see KRS 381.218 .).

7.Devise.

Every conceivable interest in, or claim to, real estate, whether present or future, vested or contingent, and however acquired, could be disposed of by will. Nutter v. Russell, 60 Ky. 163 , 1860 Ky. LEXIS 41 ( Ky. 1860 ).

Research References and Practice Aids

Kentucky Law Journal.

Dukeminier, Kentucky Perpetuities Law Restated and Reformed, 49 Ky. L.J. 3 (1960).

381.215. Adoption of common law rule against perpetuities. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 167, § 1, effective June 16, 1960) was repealed by Acts 2010, ch. 21, § 14, effective July 15, 2010.

381.216. Wait-and-see doctrine — Reformation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 167, § 2, effective June 16, 1960) was repealed by Acts 2010, ch. 21, § 14, effective July 15, 2010.

381.217. Exception in the case of pension trusts. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 167, § 3, effective June 16, 1960) was repealed by Acts 2010, ch. 21, § 14, effective July 15, 2010.

381.218. Abolition of fee simple determinable and possibility of reverter.

The estate known at common law as the fee simple determinable and the interest known as the possibility of reverter are abolished. Words which at common law would create a fee simple determinable shall be construed to create a fee simple subject to a right of entry for condition broken. In any case where a person would have a possibility of reverter at common law, he shall have a right of entry.

History. Enact. Acts 1960, ch. 167, § 4, effective June 16, 1960.

NOTES TO DECISIONS

1.Will Interpretation.

To resolve a boundary dispute, the appellate court interpreted the phrase in a will devising property “so long as she remains a widow” and held that in accordance with KRS 381.218 the widow was devised a fee simple subject to executory interest contingent upon divestment in the event she remarried. Lee v. Tipton, 2012 Ky. App. LEXIS 72 (Ky. Ct. App. May 18, 2012), review denied, ordered not published, 2012 Ky. LEXIS 462 (Ky. Dec. 12, 2012).

Opinions of Attorney General.

A city could legally deed property for $1.00 to the commonwealth for the benefit of the school board with a reverter provision which would give a fee simple title subject to a right of entry (reverter) unless construction of a school building had begun within five (5) years of the date of the deed’s execution, but if construction had begun within five years the title would become a fee simple absolute. OAG 70-797 .

Research References and Practice Aids

Northern Kentucky Law Review.

Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 51 (1979).

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

381.219. Termination after thirty years of rights of entry created after July 1, 1960.

A fee simple subject to a right of entry for condition broken shall become a fee simple absolute if the specified contingency does not occur within thirty (30) years from the effective date of the instrument creating such fee simple subject to a right of entry. If such contingency occurs within said thirty (30) years the right of entry, which may be created in a person other than the person creating the interest or his heirs, shall become exercisable notwithstanding the rule against perpetuities. This section shall not apply to rights of entry created prior to July 1, 1960.

History. Enact. Acts 1960, ch. 167, § 5, effective June 16, 1960.

Research References and Practice Aids

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

381.220. Restraints on alienation — Duration of — Exceptions. [Repealed.]

Compiler’s Notes.

This section (2360: amend. Acts 1956, ch. 175) was repealed by Acts 1960, ch. 167, § 8.

381.221. Termination and preservation of forfeiture restrictions created before July 1, 1960.

  1. Every possibility of reverter and right of entry created prior to July 1, 1960, shall cease to be valid or enforceable at the expiration of thirty (30) years after the effective date of the instrument creating it, unless before July 1, 1965, a declaration of intention to preserve it is filed for record with the county clerk of the county in which the real property is located.
  2. The declaration shall be entitled “Declaration of Intention to Preserve Restrictions on the Use of Land,” and shall set forth:
    1. The name of the record owner or owners of the fee in the land against whom the possibility of reverter or right of entry is intended to be preserved;
    2. The names and addresses of the persons intending to preserve the possibility of reverter or right of entry;
    3. A description of the land;
    4. The terms of the restriction;
    5. A reference to the instrument creating the possibility of reverter or right of entry and to the place where such instrument is recorded. The declaration shall be signed by each person named therein as intending to preserve the possibility of reverter or right of entry and shall be acknowledged or proved in the manner required to entitle a conveyance of real property to be recorded. The county clerk shall record the declaration in the record of deeds and shall index it in the general index of deeds in the same manner as if the record owner or owners of the land were the grantor or grantors and the persons intending to preserve the possibility of reverter or right of entry were the grantees in a deed of conveyance. For indexing and recording the clerk shall receive the same fees as are allowed for indexing and recording deeds.

History. Enact. Acts 1960, ch. 167, § 6, effective June 16, 1960.

NOTES TO DECISIONS

1.Constitutionality.

Contract right protected by the state constitution is not impaired by requirement that declaration of intent to preserve possibility of reverter and right of entry be recorded since this requirement is reasonable in light of the inconvenience and expense caused by the existence of these interests for unlimited periods of time. Cline v. Johnson County Board of Education, 548 S.W.2d 507, 1977 Ky. LEXIS 399 ( Ky. 1977 ).

Kentucky Perpetuities Act, KRS 381.221 , did not violate the Contracts Clause, U.S. Const. art. I, § 10, because it did not create a substantial impairment on the obligation of contracts when it provided for the termination of a possibility of reverter created prior to July 1, 1960 after 30 years unless a declaration of intention to preserve it was filed. Black Mt. Energy Corp. v. Bell County Bd. of Educ., 467 F. Supp. 2d 715, 2006 U.S. Dist. LEXIS 91786 (E.D. Ky. 2006 ).

2.Right of Entry.

Kentucky perpetuities act of 1960 is the equivalent of a statute of limitation, and this section applies to a right of entry impliedly retained to enforce a restraint on alienation. Atkinson v. Kish, 420 S.W.2d 104, 1967 Ky. LEXIS 96 ( Ky. 1967 ).

3.Right of Re-entry.

Trial court erred in finding that the neighbors had no right of re-entry under the condition precedent because the neighbors failed to preserve their right under KRS 381.221(1); the deed did not create a condition subsequent with a right of re-entry, as it instead created a covenant that ran with the land. Camenisch v. City of Stanford, 140 S.W.3d 1, 2003 Ky. App. LEXIS 211 (Ky. Ct. App. 2003).

4.Filing Declaration of Intention.

The bringing of an action by holders of reversionary interest against county school board claiming that under terms of the deed the school board had forfeited title by discontinuance of use of the parcel for a school obviated the necessity of filing a declaration under this section of intent to preserve the reversionary right under the deed. Withers v. Pulaski County Board of Education, 415 S.W.2d 604, 1967 Ky. LEXIS 324 ( Ky. 1967 ).

The nonuse of a clubhouse for approximately five years must be deemed a period of substantial duration, and the informal, indefinite intent of the club to use the property for its legitimate purposes was not sufficient to prevent the operation of the terms of deed which provided for reverter when land ceased to be used for legitimate purposes of the club. Hunt v. Coal Run Homemakers Club, 440 S.W.2d 267, 1969 Ky. LEXIS 339 ( Ky. 1969 ).

Where 1869 deed created a possibility of reverter which carried with it an automatic termination on cessation of use as a railroad depot and railroad ceased using the lot as a depot no later than 1948, reversion of property to heirs of original grantor was not prevented by this section since, reversion having already occurred, the possibility of reverter no longer existed by the time the declarations of intent to preserve were required to be filed. Caldwell v. Brown, 553 S.W.2d 692, 1977 Ky. LEXIS 477 ( Ky. 1977 ).

5.Particular Use.

It was clear error for the trial court to set aside, in a wholesale manner, the original restrictions attached to a deed giving land to the city for a park because, although the heirs right of re-entry had been terminated, the original owner did have a right to specify the particular use to which the land could be devoted, although deed conditions could nevertheless be changed to a certain degree to make them consistent with the times. Unknown Heirs, Devisees, Legatees & Assigns of Devou v. Covington, 815 S.W.2d 406, 1991 Ky. App. LEXIS 47 (Ky. Ct. App. 1991).

Opinions of Attorney General.

Where the deeds to two tracts of land purchased by a county school system in 1923 contained possibility of reverter clauses, but where no preservation notice was filed during the five-year period provided for by this section, the county board of education would own the two tracts in fee simple. OAG 77-542 .

Research References and Practice Aids

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

381.222. Exceptions to KRS 381.219 and 381.221.

KRS 381.219 and 381.221 shall not apply to any possibility of reverter or right of entry contained in a deed, gift or grant from the Commonwealth or any political subdivision thereof; nor shall they apply where both the fee simple determinable and the succeeding interest, or both the fee simple subject to a right of entry and the right of entry, are for public, charitable or religious purposes; nor shall they affect any lease present or future or any easement, right of way, mortgage or trust, or any communication, transmission, or transportation lines, or any public highway, right to take minerals, or charge for support during the life of a person or persons, or any restrictive covenant without right of entry or reverter.

History. Enact. Acts 1960, ch. 167, § 7, effective June 16, 1960.

381.223. Application of KRS 381.218, 381.219, 381.221, 381.222, and 381.223.

To the extent they are not superseded by KRS 381.224 , 381.225 , and 381.226 , and except as provided in KRS 381.218 , 381.219 , 381.221 , 381.222 , and 381.223 shall apply only to inter vivos instruments and wills taking effect after July 1, 1960, and to appointments made after July 1, 1960, including appointments by inter vivos instrument or will under powers created before July 1, 1960.

History. Enact. Acts 1960, ch. 167, § 9, effective June 16, 1960; 2010, ch. 21, § 12, effective July 15, 2010.

NOTES TO DECISIONS

1.Application.

Where a trust was created prior to 1960, its validity was determined by KRS 381.220 . Caudle v. Smither, 427 S.W.2d 227, 1968 Ky. LEXIS 668 ( Ky. 1968 ).

381.224. Rule against perpetuities abrogated.

An interest created in real or personal property shall not be void by reason of any rule against perpetuities, whether the common law rule or otherwise. The common law rule against perpetuities shall not be in force in this Commonwealth.

History. Enact. Acts 2010, ch. 21, § 1, effective July 15, 2010.

381.225. Permissible period of power of alienation under trust — Future interest.

    1. A future interest or trust is void if it suspends the power of alienation for longer than the permissible period. The power of alienation is the power to convey to another an absolute fee in possession of land, or full ownership of personalty. The permissible period is within twenty-one (21) years after the death of an individual or individuals then alive. (1) (a) A future interest or trust is void if it suspends the power of alienation for longer than the permissible period. The power of alienation is the power to convey to another an absolute fee in possession of land, or full ownership of personalty. The permissible period is within twenty-one (21) years after the death of an individual or individuals then alive.
    2. If the settlor of an inter vivos trust has an unlimited power to revoke, the permissible period is computed from the termination of that power.
    3. If a future property interest or trust is created by exercise of a power of appointment, the permissible period is computed from the time the power is exercised if the power is a general power exercisable in favor of the donee, the donee’s estate, the donee’s creditors, or the creditors of the donee’s estate, whether or not it is exercisable in favor of others, and even if the general power is exercisable only by will; in the case of other powers, the permissible period is computed from the time the power is created, unless the instrument exercising the power provides that the period is computed from the date the power is irrevocably exercised, but facts at the time the power is exercised are considered in determining whether the power of alienation is suspended beyond the death of an individual or individuals alive at the time of creation of the power plus twenty-one (21) years.
  1. The power of alienation is suspended when there are no persons who, alone or in combination with others, can convey an absolute fee in possession of land, or full ownership of personalty.
  2. There is no suspension of the power of alienation by a trust or by equitable interests under a trust if the trustee has power to sell, either expressed or implied, or if there is a power to terminate the trust by distributing the property subject to the trust to the beneficiaries in fee simple in one (1) or more persons then living.
  3. This section does not apply to limit any of the following:
    1. Transfers, outright or in trust, for charitable purposes;
    2. Transfers to one (1) or more charitable organizations as described in 26 U.S.C. secs. 170(c) , 2055(a), and 2522(a), or any similar statute;
    3. A future interest or a power of appointment arising out of a nondonative transfer, except a nonvested property interest or a power of appointment arising out of:
      1. A premarital or post-marital agreement;
      2. A separation or divorce settlement;
      3. An arrangement similar to subparagraph 1. or 2. of this paragraph arising out of a prospective, existing, or previous marital relationship between the parties;
      4. A contract to make or revoke a will or trust;
      5. A contract to exercise or not to exercise a power of appointment;
      6. A transfer in satisfaction of a duty of support; or
      7. A reciprocal transfer;
    4. A transfer to a trust or other property arrangement forming part of a pension, profit-sharing, stock bonus, health, disability, death benefit, income deferral, or other current or deferred benefit plan for one (1) or more employees, independent contractors, or their beneficiaries or spouses, to which contributions are made for the purposes of distributing to or for the benefit of the participants or their beneficiaries or spouses the property, income, or principal in the trust or other property arrangement; or
    5. A property interest, power of appointment, or arrangement that was not subject to the common law rule against perpetuities or is excluded by another statute of this Commonwealth.

HISTORY: Enact. Acts 2010, ch. 21, § 2, effective July 15, 2010; 2020 ch. 41, § 38, effective July 15, 2020.

381.226. Applicability of KRS 381.224 and 381.225 to property interests and powers of appointment — Construction of provisions requiring vesting within period provided by common law rule against perpetuities.

  1. Except as provided in subsection (2) of this section, KRS 381.224 and 381.225 shall apply to:
    1. A future property interest or a power of appointment that is created on or after July 15, 2010, including a property interest or power of appointment created pursuant to the exercise of a power of appointment under an instrument executed prior to July 15, 2010; or
    2. A future property interest or a power of appointment:
      1. That is created pursuant to the laws of any state that does not have a rule against perpetuities in force;
      2. That is not covered by any previously existing rule against perpetuities; and
      3. To which, after July 15, 2010, the laws of this state are made applicable by transfer of the situs of a trust to Kentucky, by a change in the law governing a trust instrument to Kentucky law, or otherwise.
  2. With respect to a nonvested property interest or a power of appointment created either before or after July 15, 2010, which is determined in a judicial proceeding commenced on or after July 15, 2010, to violate Kentucky’s rule against perpetuities as that rule existed at the time the interest or power was created, a court upon the petition of an interested person may reform the disposition in the manner that most closely approximates the transferor’s manifested plan of disposition and is within the limits of the rule against perpetuities applicable when the nonvested property interest or power of appointment was created.
  3. For purposes of this section only, a future property interest or a power of appointment is created when the power is irrevocably exercised or when a revocable exercise becomes irrevocable.
  4. An instrument which contains a provision requiring the vesting of all interests created by the instrument within the period provided by the common law rule against perpetuities shall be construed as requiring the interests to vest within the period specified by this section and KRS 381.224 and 381.225 , unless the provision is determined by a court to have been included in the instrument for reasons other than protecting the interest against a violation of the common law rule against perpetuities. For purposes of this subsection, the term “common law rule against perpetuities” shall include KRS 381.215 , 381.216 , and 381.217 prior to their repeal on July 15, 2010. This subsection does not apply to any interest in property created by the exercise of the special power of appointment granted by an instrument that was irrevocable on September 25, 1985.

HISTORY: Enact. Acts 2010, ch. 21, § 3, effective July 15, 2010; 2020 ch. 41, § 39, effective July 15, 2020.

381.230. Possession unnecessary in action for trespass.

The owner of land may maintain the appropriate action to recover damages for any trespass or injury committed thereon, or to prevent or restrain any trespass or other injury thereto or thereon, notwithstanding the owner may not have the actual possession of the land at the time of the commission of the trespass.

History. 2361.

NOTES TO DECISIONS

1.Construction.

This section has not changed the general equity rule that a suit to quiet title cannot be maintained except by one having both legal title and possession. Morse v. South, 80 F. 206, 1897 U.S. App. LEXIS 2594 (C.C.D. Ky. 1897 ).

2.Owner.

The word “owner” in this section, authorizing the owner of land, though not in actual possession, to sue for trespass thereon, means one who owns the land by a title of record deducible from the Commonwealth, or who has acquired ownership by adverse possession of the land. Scroggins v. Nave, 133 Ky. 793 , 119 S.W. 158, 1909 Ky. LEXIS 231 ( Ky. 1909 ).

The word “owner” in this section means one who owns the land by a title deducible from the Commonwealth or has acquired title by adverse possession. French v. Childers, 280 Ky. 339 , 133 S.W.2d 63, 1939 Ky. LEXIS 117 ( Ky. 1939 ).

3.Basis of Right to Recover.

Even if the defendant’s claim is faulty, the plaintiff’s right to recover is dependent not upon the good faith of his claim but the validity of his title. Phillips v. Alma Coal Co., 7 F.2d 42, 1925 U.S. App. LEXIS 3479 (6th Cir. Ky. 1925 ), cert. denied, 271 U.S. 669, 46 S. Ct. 483, 70 L. Ed. 1142, 1926 U.S. LEXIS 747 (U.S. 1926).

4.Proof of Ownership.

Deed which did not show where grantor obtained title is insufficient to establish plaintiff’s title in action for trespass. French v. Childers, 280 Ky. 339 , 133 S.W.2d 63, 1939 Ky. LEXIS 117 ( Ky. 1939 ).

In action for trespass, plaintiff cannot prove his own title by proving that his predecessor in title successfully defended actions brought by third parties to quiet title and to recover value of timber removed, where those actions did not require the defendant therein to prove the validity of his own title. French v. Childers, 280 Ky. 339 , 133 S.W.2d 63, 1939 Ky. LEXIS 117 ( Ky. 1939 ).

In an action for trespass, where the title to the land is put in issue, the plaintiff must recover on the strength of his own title and not on the weakness of defendant’s title. French v. Childers, 280 Ky. 339 , 133 S.W.2d 63, 1939 Ky. LEXIS 117 ( Ky. 1939 ).

In order to obtain complete relief on the trial of an issue of title, the one trespassed upon must allege and prove, if denied, title back to the Commonwealth, or title by adverse possession, unless title of each litigant is traceable to a common source, in which case no title beyond that source need be proven. Oglesby v. Nation, 282 Ky. 458 , 138 S.W.2d 967, 1940 Ky. LEXIS 188 ( Ky. 1940 ).

5.Authorized Actions.

An owner not in possession could sue to recover damages for trespass and injury committed on land, including the wrongful cutting and removing of trees. (Decided under prior law) Meehan v. Edwards, 92 Ky. 574 , 18 S.W. 519, 13 Ky. L. Rptr. 803 , 1892 Ky. LEXIS 24 ( Ky. 1892 ).

Under this section, an owner of land may maintain an action for the cutting and removing of timber thereon, and destroying the monuments of title, without being in the actual possession of the land at the time of the commission of the injury. Goff v. Lowe, 80 S.W. 219, 25 Ky. L. Rptr. 2176 (1904).

Action to quiet title and restrain trespass upon land may be maintained in equity under this section. Driskill v. Dixon, 143 Ky. 759 , 137 S.W. 768, 1911 Ky. LEXIS 523 ( Ky. 1911 ). See Driskill v. Dixon, 143 Ky. 759 , 137 S.W. 768, 1911 Ky. LEXIS 523 ( Ky. 1911 ).

Action for trespass was properly joined with action for recovery of land, and causes should have been transferred to common-law docket and heard by a jury. Turk v. Wilson's Heirs, 266 Ky. 78 , 98 S.W.2d 4, 1936 Ky. LEXIS 591 ( Ky. 1936 ).

An owner not in possession may sue to recover damages for trespass and injury committed on land, including the wrongful cutting and removing of trees. Louisville Cooperage Co. v. Rudd, 276 Ky. 721 , 124 S.W.2d 1063, 1938 Ky. LEXIS 562 ( Ky. 1938 ).

Under this section landowner was authorized to maintain action for injunction to prevent trespass on and to restrain assertion of claim against land. Colony Coal & Coke Corp. v. Napier, 28 F. Supp. 76, 1939 U.S. Dist. LEXIS 2502 (D. Ky. 1939 ).

6.Actions Not Authorized.

One who neither owns nor is in possession of land trespassed upon may not maintain action to restrain trespass or recover damages for trespass. Muse v. Payne, 144 Ky. 30 , 137 S.W. 788, 1911 Ky. LEXIS 544 ( Ky. 1911 ).

This and related sections do not authorize a contingent remainderman to maintain an action for waste against a life tenant. Fisher's Ex'r v. Haney, 180 Ky. 257 , 202 S.W. 495, 1918 Ky. LEXIS 40 ( Ky. 1918 ). See Louisville Cooperage Co. v. Rudd, 276 Ky. 721 , 124 S.W.2d 1063, 1938 Ky. LEXIS 562 ( Ky. 1938 ).

Purchaser of land has no cause of action for damages done to land before he purchased it. Tudor v. Kentucky Utilities Co., 282 Ky. 277 , 138 S.W.2d 473, 1940 Ky. LEXIS 163 ( Ky. 1940 ).

7.Possession.

Owner having title to land is in constructive possession of it, and may maintain action to restrain a trespass or to recover damages for trespass under this section, although not in actual possession. Coppage v. Griffith, 40 S.W. 908, 19 Ky. L. Rptr. 459 (1897). See McCloskey v. Doherty, 97 Ky. 30 0 , 30 S.W. 649, 17 Ky. L. Rptr. 178 , 1895 Ky. LEXIS 188 ( Ky. 1895 ); Wiggins v. Jackson, 73 S.W. 779, 24 Ky. L. Rptr. 2189 (1903); Chambers v. Haskell, 78 S.W. 478, 25 Ky. L. Rptr. 1707 (1904); Bowling v. Breathitt Coal, Iron & Lumber Co., 134 Ky. 249 , 120 S.W. 317, 1909 Ky. LEXIS 388 ( Ky. 1909 ); Dixon v. Driskill, 122 S.W. 204 ( Ky. 1909 ); Deaton v. Burton, 142 Ky. 7 , 133 S.W. 958, 1911 Ky. LEXIS 120 (Ky.), modified, 143 Ky. 7 3 , 135 S.W. 409, 1911 Ky. LEXIS 325 ( Ky. 1911 ); Muse v. Payne, 144 Ky. 30 , 137 S.W. 788, 1911 Ky. LEXIS 544 ( Ky. 1911 ).

The action was not one to quiet title, so as to render the complaint bad for lack of an allegation of possession, but was properly brought under this section, providing that the owner of land may maintain the appropriate action to restrain any trespass thereon or injury thereto, though he may not have the actual possession of the land. Daniel v. Trunnell, 130 Ky. 85 , 113 S.W. 51, 1908 Ky. LEXIS 243 ( Ky. 1908 ).

One in possession of land claiming ownership under a deed with intention to possess it all is in the constructive actual possession of the land to the extent of the boundaries described in his deed, except such as may be in the actual possession of another. Oglesby v. Nation, 282 Ky. 458 , 138 S.W.2d 967, 1940 Ky. LEXIS 188 ( Ky. 1940 ).

The maintain an action for damages for trespass, a plaintiff who has obtained title by adverse possession need not be in actual possession of land. Oglesby v. Nation, 282 Ky. 458 , 138 S.W.2d 967, 1940 Ky. LEXIS 188 ( Ky. 1940 ).

Constructive possession of land by owner is sufficient to sustain an action under this section; actual possession is unnecessary. Rhoades v. Bennett, 307 Ky. 507 , 211 S.W.2d 693, 1948 Ky. LEXIS 781 ( Ky. 1948 ).

8.Right of Ingress and Egress.

Where deed to mineral rights gave grantee right of ingress and egress, to build haul roads, lay pipelines, use, divert, dam and pollute watercourses, to dump, store and leave on the land matter excavated in extracting minerals, and released owner of mineral rights from all liability for damages to surface, owner of surface could not recover for damages to surface in action for trespass without pleading and proving that grantee of mineral rights acted negligently, arbitrarily, maliciously or oppressively. United Carbon Co. v. Webb, 282 Ky. 79 , 137 S.W.2d 733, 1940 Ky. LEXIS 125 ( Ky. 1940 ).

9.Jurisdiction.

Action of trespass to recover damages for cutting timber is of local nature, and can only be maintained in federal court in district in which land is situated. Kentucky Coal Lands Co. v. Mineral Development Co., 191 F. 899, 1911 U.S. App. LEXIS 5009 (C.C.D. Ky. 1911 ), rev'd, 219 F. 45, 1914 U.S. App. LEXIS 1636 (6th Cir. Ky. 1914 ).

Cited:

Goins v. Catron, 300 Ky. 583 , 190 S.W.2d 322, 1945 Ky. LEXIS 635 ( Ky. 1945 ); Smith v. Williamson, 306 Ky. 467 , 208 S.W.2d 503, 1948 Ky. LEXIS 596 ( Ky. 1948 ).

Research References and Practice Aids

Cross-References.

Action of trespass, damages, KRS 454.040 .

Actions for recovery of real estate, KRS 413.010 to 413.040 .

Action to quiet title, KRS 411.120 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Intentional Trespass (General Form), Form 304.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Trespass, § 304.00.

Kentucky Instructions to Juries (Civil), 5th Ed., Trespass, § 32.01.

381.231. Definitions.

  1. A “trespasser” means any person who enters or goes upon the real estate of another without any right, lawful authority or invitation, either expressed or implied, but does not include persons who come within the scope of the “attractive nuisance” doctrine.
  2. An owner of real estate means any person who possesses any interest in real estate or any lawful occupant of real estate, including a burial ground.
  3. “Burial ground” means any public or privately owned parcel of land upon which a person or persons are interred or buried.

History. Enact. Acts 1976, ch. 379, § 1; 2002, ch. 276, § 1, effective July 15, 2002.

NOTES TO DECISIONS

1.Duty to Trespasser.

Although on the day he rode his dirt bike down the gravel road on landowner’s property plaintiff was a trespasser, and under Kentucky law the duties owned by landowners to trespassers are quite limited, viewing the evidence in the light most favorable to plaintiff there was a genuine issue of material fact concerning the breach of landowner’s duty to plaintiff, where landowner erected a steel cable without warnings, and accordingly this case was not ripe for summary judgment. Middleton v. Reynolds Metals Co., 963 F.2d 881, 1992 U.S. App. LEXIS 9943 (6th Cir. Ky. 1992 ).

It was not necessary to determine whether decedent who drowned after jumping from railroad bridge into water was a trespasser under this section or a licensee as there was no duty owed even to a licensee where the hazards involved here were known and obvious. Dixon v. CSX Transp., 947 F. Supp. 296, 1996 U.S. Dist. LEXIS 17977 (E.D. Ky. 1996 ), aff'd, 134 F.3d 370 (6th Cir. Ky. 1998 ).

2.Owner Not Liable.

Injured child’s mother brought action for damages against owner of horse, not known to be violent. Horse injured five (5) year old child who climbed through a barbed wire fence surrounding the farm. Horse was kept on a farm which was in close proximity to two (2) subdivisions. Horse was not an attractive nuisance and thus landowner was not liable. The landowner had attempted, albeit unsuccessfully, to prevent trespassing by the children and the cost of rendering the farm inaccessible to children would have been prohibitive. North Hardin Developers, Inc. v. Corkran, 839 S.W.2d 258, 1992 Ky. LEXIS 144 ( Ky. 1992 ).

Property owner and a contractor were entitled to judgment as a matter of law in a personal injury action because the attractive nuisance doctrine was not applicable when a sixteen-and-a-half year old youth was injured when the youth overturned a piece of heavy equipment that was parked at a residential construction site. The presence of the equipment on the construction site posed an unreasonable risk of harm to the youth, who was a licensed driver, which the youth should have been able to appreciate. Hayes v. D.C.I Props. - DKY, LLC, 2017 Ky. App. LEXIS 266 (Ky. Ct. App. June 16, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 947 (Ky. Ct. App. June 16, 2017).

3.Landowner negligence.

Summary judgment granted solely on the basis of the injured person’s status as a trespasser was premature because material issues of fact remained as to whether the landowner should have been on notice and acted negligently in not covering a deep, leaf-obstructed hole close to a public street; the person was a gratuitous licensee; and the landowner owed her a duty to warn of unreasonably unsafe conditions. Brock v. Louisville Metro Hous. Auth., 2012 Ky. App. LEXIS 286 (Ky. Ct. App. Dec. 14, 2012).

4.Trespasser.

When a truck owner parked the owner’s vehicle on building owners’ property and a third party set fire to the truck, igniting the building, the truck owner was not a trespasser because the truck owner had the building owners’ implied consent to park in that location, as the building owners had never refused permission to anyone to park there. Howard v. Spradlin, 562 S.W.3d 281, 2018 Ky. App. LEXIS 258 (Ky. Ct. App. 2018).

Cited:

Commonwealth, Natural Resources & Environmental Protection Cabinet v. Stearns Coal & Lumber Co., 678 S.W.2d 378, 1984 Ky. LEXIS 204 ( Ky. 1984 ), appeal denied, Stearns Coal & Lumber Co. v. Kentucky Natural Resources & Environmental Protection Cabinet, 473 U.S. 921, 105 S. Ct. 3549, 87 L. Ed. 2d 672, 1985 U.S. LEXIS 2845 (1985); Kirschner v. Louisville Gas & Electric Co., 743 S.W.2d 840, 1988 Ky. LEXIS 10 ( Ky. 1988 ); Miracle v. Wal-mart Stores E., LP, 659 F. Supp. 2d 821, 2009 U.S. Dist. LEXIS 32095 (E.D. Ky. 2009 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Busald and Tankersley, Survey of Kentucky Tort Law: 1991-92, 20 N. Ky. L. Rev. 687 (1993).

Elder, 2001: An End of Millennium Odyssey Through Tort Liability of Occupiers and Owners of Land, 28 N. Ky. L. Rev. 352 (2001).

381.232. Liability for certain injuries.

The owner of real estate shall not be liable to any trespasser for injuries sustained by the trespasser on the real estate of the owner, except for injuries which are intentionally inflicted by the owner or someone acting for the owner.

History. Enact. Acts 1976, ch. 379, § 2.

NOTES TO DECISIONS

1.Constitutionality.

This section does not violate Const., § 54 because it eliminates a cause of action existing at the time of the adoption of the present constitution in 1891 or is more restrictive than a cause of action embodied in the common law in 1891. Kirschner v. Louisville Gas & Electric Co., 743 S.W.2d 840, 1988 Ky. LEXIS 10 ( Ky. 1988 ).

2.Injuries Intentionally Inflicted.

The phrase “injuries which are intentionally inflicted” means inflicted by willful, wanton, or reckless conduct. Kirschner v. Louisville Gas & Electric Co., 743 S.W.2d 840, 1988 Ky. LEXIS 10 ( Ky. 1988 ).

3.Owner Not Liable.

Where, in a personal injury action, the 15-year-old victim and his friends brought the plywood from a distance and carried it up the defendant’s tower, and there was nothing in this record to even suggest that the defendant knew or should have known that individuals were climbing the tower, there was no implied invitation, and the boy was a trespasser as a matter of law. Kirschner v. Louisville Gas & Electric Co., 743 S.W.2d 840, 1988 Ky. LEXIS 10 ( Ky. 1988 ).

In a personal injury action, the defendant did not expose the trespasser to a concealed, dangerous condition, where the injury was caused by a known propensity of high-voltage electricity, and there was sufficient warning of the danger. Kirschner v. Louisville Gas & Electric Co., 743 S.W.2d 840, 1988 Ky. LEXIS 10 ( Ky. 1988 ).

Injured child’s mother brought action for damages against owner of horse, not known to be violent. Horse injured five (5) year old child who climbed through a barbed wire fence surrounding the farm. Horse was kept on a farm which was in close proximity to two (2) subdivisions. Horse was not an attractive nuisance and thus landowner was not liable. The landowner had attempted, albeit unsuccessfully, to prevent trespassing by the children and the cost of rendering the farm inaccessible to children would have been prohibitive. North Hardin Developers, Inc. v. Corkran, 839 S.W.2d 258, 1992 Ky. LEXIS 144 ( Ky. 1992 ).

4.Ordinary Care.

Under this section and common law applicable to trespassers, one has a duty to use ordinary care to prevent harm to one known to be in danger. List v. Southern R. Co., 752 S.W.2d 791, 1988 Ky. App. LEXIS 92 (Ky. Ct. App. 1988).

5.Duty to Trespasser.

Although on the day he rode his dirt bike down the gravel road on landowner’s property plaintiff was a trespasser, and under Kentucky law the duties owned by landowners to trespassers are quite limited, viewing the evidence in the light most favorable to plaintiff there was a genuine issue of material fact concerning the breach of landowner’s duty to plaintiff, where landowner erected a steel cable without warnings, and accordingly this case was not ripe for summary judgment. Middleton v. Reynolds Metals Co., 963 F.2d 881, 1992 U.S. App. LEXIS 9943 (6th Cir. Ky. 1992 ).

Summary judgment granted solely on the basis of the injured person’s status as a trespasser was premature because material issues of fact remained as to whether the landowner should have been on notice and acted negligently in not covering a deep, leaf-obstructed hole close to a public street; the person was a gratuitous licensee; and the landowner owed her a duty to warn of unreasonably unsafe conditions. Brock v. Louisville Metro Hous. Auth., 2012 Ky. App. LEXIS 286 (Ky. Ct. App. Dec. 14, 2012).

Property owner and a contractor were entitled to judgment as a matter of law in a personal injury action because the attractive nuisance doctrine was not applicable when a sixteen-and-a-half year old youth was injured when the youth overturned a piece of heavy equipment that was parked at a residential construction site. The presence of the equipment on the construction site posed an unreasonable risk of harm to the youth, who was a licensed driver, which the youth should have been able to appreciate. Hayes v. D.C.I Props. - DKY, LLC, 2017 Ky. App. LEXIS 266 (Ky. Ct. App. June 16, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 947 (Ky. Ct. App. June 16, 2017).

Trial court properly dismissed a 16-1/2 year-old minor trespasser’s personal injury action against a developer and a contractor because the attractive nuisance doctrine did not apply where the minor acknowledged danger in trying to operate the heavy machinery at a construction site and had taken keys from one piece machinery so that his friends would not get hurt or in trouble if they started it, one of the minor’s friends testified that when the minor got on a compactor, he tried to talk him off it to no avail, and as he attempted to drive the compactor, it tipped over onto the minor injuring him, and there was no evidence that the developer or contractor intentionally inflicted the minor’s injuries by willful, wanton, or reckless conduct. Hayes v. D.C.I. Properties-D KY, LLC, 563 S.W.3d 619, 2018 Ky. LEXIS 524 ( Ky. 2018 ).

Cited:

Miracle v. Wal-mart Stores E., LP, 659 F. Supp. 2d 821, 2009 U.S. Dist. LEXIS 32095 (E.D. Ky. 2009 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Busald and Tankersley, Survey of Kentucky Tort Law: 1991-92, 20 N. Ky. L. Rev. 687 (1993).

Elder, 2001: An End of Millennium Odyssey Through Tort Liability of Occupiers and Owners of Land, 28 N. Ky. L. Rev. 352 (2001).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Premises Liability, § 131.00.

Kentucky Instructions to Juries (Civil), 5th Ed., Owners and Occupiers of Real Estate, § 24.13.

381.240. Title to land in adverse possession not to be certified.

No county clerk or other county or state officer shall officially certify to any abstract or statement of title to lands in this state, where such lands are in the actual possession of another than the person or corporation shown to be the owner of the abstract or certificate, when such person in possession is claiming such lands under title adverse to that shown in such abstract or certificate.

History. 2379a-1.

Research References and Practice Aids

Cross-References.

Occupancy for seven years with title bars right of entry, exception, KRS 413.060 .

Sale of land adversely held, KRS 372.070 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint to Establish Title by Adverse Possession, Form 303.01.

381.250. Certification prohibited when more than one patent.

If two (2) or more patents have been issued for the same land, whether by this state or by the State of Virginia, no county clerk or other county or state officer shall officially certify that the records show, or that the fact is that the title is in any of the patentees, or in any person claiming under any of the patents.

History. 2379a-2.

NOTES TO DECISIONS

1.Construction.

This section is substantially the same as the common law, the purpose of which was to curb the acquisitions of eleemosynary corporations operating under the guise of charities. State Bank & Trust Co. v. Patridge, 198 Ky. 403 , 248 S.W. 1056, 1923 Ky. LEXIS 483 ( Ky. 1923 ).

381.260. Grants-in-aid of charity valid.

  1. Every grant, conveyance, legacy, bequest, devise, gift, appointment, assignment and transfer of property, whenever made and in whatever form, shall be valid (a) if made to any corporation, association, trust, foundation, or similar organization or entity, created or formed for and devoted solely to charitable, religious, scientific, literary, educational, humane, benevolent or like purposes or, (b) except as otherwise provided by statute, if it is made for any charitable or humane purpose and if it points out with reasonable certainty the purposes of the charity and the beneficiaries thereof.
  2. A grant, conveyance, legacy, bequest, devise, gift, appointment, assignment and transfer of property, whenever made and in whatever form, is deemed to point out with reasonable certainty the purposes of the charity and beneficiaries thereof if and so long as the same is to or for the use of any corporation, trust, community chest, fund, foundation, or other entity organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, including the encouragement of art and the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private stockholder or individual (except as reasonable compensation for services rendered), and no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office, even though such corporation, trust, fund, foundation or other entity is authorized to apply the trust income or property to any class or classes of charitable purposes mentioned above and the trustee or other managing individual or body is able and willing to make the selection.

History. 317: amend. Acts 1966, ch. 211, § 1(1); 1980, ch. 123, § 1, effective July 15, 1980.

NOTES TO DECISIONS

1.Construction.

This section is liberally construed by the courts to carry out, if possible, the charitable purposes of the donor of the trust, and no such trust will be permitted to fail for want of a trustee. State Bank & Trust Co. v. Patridge, 198 Ky. 403 , 248 S.W. 1056, 1923 Ky. LEXIS 483 ( Ky. 1923 ).

It is the policy of the law to encourage gifts and devises to charitable institutions. Gill's Ex'r v. Woman's Club of Louisville, 205 Ky. 731 , 266 S.W. 378, 1924 Ky. LEXIS 211 ( Ky. 1924 ).

Charitable bequest or devise is valid only when purposes, beneficiaries, and objects are nominated and described with reasonable certainty. Gooding v. Watson's Trustee, 235 Ky. 562 , 31 S.W.2d 919, 1930 Ky. LEXIS 412 ( Ky. 1930 ). See Thornton v. Kirtley, 249 S.W.2d 803, 1952 Ky. LEXIS 874 ( Ky. 1952 ).

Test of validity of charitable bequest is reasonable certainty in respect to beneficiaries thereof, either individually or as class. Owens v. Owens' Ex'r, 236 Ky. 118 , 32 S.W.2d 731, 1930 Ky. LEXIS 699 ( Ky. 1930 ).

Courts look with favor on charitable gifts and will uphold them when it can be done consistently with established rules of law, and will protect them from assault. Kentucky Christian Missionary Soc. v. Moren, 267 Ky. 358 , 102 S.W.2d 335, 1937 Ky. LEXIS 326 ( Ky. 1937 ).

Charitable bequest will be upheld if bounty can be applied to any single object within a specified class of beneficiaries, or if it can be upheld without violating any rule of law, principle of justice, or public policy. Bush's Ex'r v. Mackoy, 267 Ky. 614 , 103 S.W.2d 95, 1937 Ky. LEXIS 370 ( Ky. 1937 ).

Where testator designates neither class nor object of charitable bequest, and leaves choice to the trustee, the bequest fails under law as an attempt to delegate testator’s authority to make the will. Bush's Ex'r v. Mackoy, 267 Ky. 614 , 103 S.W.2d 95, 1937 Ky. LEXIS 370 ( Ky. 1937 ).

This section should receive a construction similar to that given the English statute which is that devises made for charitable uses will be sustained as valid trusts and the rule against perpetuities does not apply; thus, a valid charity is established where the purpose for which it is created is maintenance of a public cemetery but this section does not prevent the state from requiring a nonprofit cemetery corporation to pay unemployment compensation tax. Lexington Cemetery Co. v. Commonwealth, 297 Ky. 851 , 181 S.W.2d 699, 1944 Ky. LEXIS 839 ( Ky. 1944 ).

All the limitations applicable to private trusts are not applicable to charitable trusts. Young v. Redmon's Trustee, 300 Ky. 418 , 189 S.W.2d 401, 1945 Ky. LEXIS 560 ( Ky. 1945 ).

Where the purposes of the charity are made reasonably certain by the instrument creating it, the beneficiaries may be designated by class, leaving particular beneficiaries within the class to be determined by the trustee. Druker v. Levy, 262 S.W.2d 681, 1953 Ky. LEXIS 1117 ( Ky. 1953 ).

Charitable gifts are favored and are valid if the purpose and the beneficiaries thereof are pointed out with reasonable certainty. Davis v. Cary, 429 S.W.2d 411, 1968 Ky. LEXIS 752 ( Ky. 1968 ).

Subsection (1) of this section does not require any statement of purpose or object in a devise to any organizations which are specifically named because the designation of the particular organization carries with it the implication that the objects of the testator and the objects of the organization selected are the same. Bank of Maysville v. Calvert, 481 S.W.2d 24, 1972 Ky. LEXIS 208 ( Ky. 1972 ).

Subsection (2) of this section validates devises for charitable purposes even where the devise is not made to any specific entity as long as the devise points out with reasonable certainty the purposes of the charity and the beneficiaries thereof. Bank of Maysville v. Calvert, 481 S.W.2d 24, 1972 Ky. LEXIS 208 ( Ky. 1972 ).

2.Charitable or Humane Purpose.

A devise to wife for life then to university in trust with proceeds to be used for education of descendants of two (2) named persons was not a charitable trust. Johnson v. De Pauw University, 116 Ky. 671 , 76 S.W. 851, 25 Ky. L. Rptr. 950 , 1903 Ky. LEXIS 246 ( Ky. 1903 ).

A testamentary trust to establish and maintain an orphans’ asylum for the maintenance and education of the orphan children under 17 years of age of members of a secret society is a “public charity,” and valid, within this section relating to gifts to charity. Green's Adm'r v. Fidelity Trust Co., 134 Ky. 311 , 120 S.W. 283, 1909 Ky. LEXIS 376 ( Ky. 1909 ).

Conveyance of land to organization for the purpose of a lodge room, church and a graveyard created a valid trust for charitable purpose of the kind described in this section. Tate v. Woodyard, 145 Ky. 613 , 140 S.W. 1044, 1911 Ky. LEXIS 914 ( Ky. 1911 ).

Charitable gifts are (1) gifts for eleemosynary purposes, (2) gifts for educational purposes, (3) gifts for religious purposes, and (4) gifts for public purposes, and humane purpose is the basis of all valid charities. Neptune Fire Engine & Hose Co. v. Board of Education, 166 Ky. 1 , 178 S.W. 1138, 1915 Ky. LEXIS 628 ( Ky. 1 915 ), overruled, Greene v. Stevenson, 295 Ky. 832 , 175 S.W.2d 519, 1943 Ky. LEXIS 348 ( Ky. 1943 ).

Bequest for maintenance of burial lot of testatrix was for a humane purpose as provided by this section and was valid. Street v. Cave Hill Inv. Co., 191 Ky. 422 , 230 S.W. 536, 1921 Ky. LEXIS 326 ( Ky. 1921 ).

A trust created for the use and benefit of a dog was for a “humane purpose” within this section, although it did not create a charity in its strict technical sense. Willett v. Willett, 197 Ky. 663 , 247 S.W. 739, 1923 Ky. LEXIS 685 ( Ky. 1923 ).

There is a clear distinction between a charity and a humane purpose as charity extends to every one of a class, while it is a humane purpose which moves a person to take care of or feed a single hungry person, bird or dog. Willett v. Willett, 197 Ky. 663 , 247 S.W. 739, 1923 Ky. LEXIS 685 ( Ky. 1923 ).

Devise of property to Society of Soul Winners to constitute a fund the interest from which should be used in the prosecution of the objects of the society which are to help the mountain people by employing preachers and teachers to instruct them and help them build churches and school houses is valid, as such objects are sufficiently certain within the meaning of this section. Goldberg v. Home Missions of Presbyterian Church, 197 Ky. 724 , 248 S.W. 219, 1923 Ky. LEXIS 737 ( Ky. 1923 ).

A bequest to be applied for masses to be celebrated for the repose of soul of testator after his decease was a charitable use; being an act of public worship, it was for a religious purpose, general to the public in nature. Obrecht v. Pujos, 206 Ky. 751 , 268 S.W. 564, 1925 Ky. LEXIS 1051 ( Ky. 1925 ).

Bequest for reconstruction of monasteries and relief of poor ones was for a charitable use. Obrecht v. Pujos, 206 Ky. 751 , 268 S.W. 564, 1925 Ky. LEXIS 1051 ( Ky. 1925 ).

A devise to a trustee for the benefit of a Young Women’s Christian Association in a certain city when one was properly organized and giving the trustee exclusive power to determine when such had been properly organized was valid. Russell v. Tyler, 224 Ky. 511 , 6 S.W.2d 707, 1928 Ky. LEXIS 642 ( Ky. 1928 ).

Charity is gift for benefit of indefinite number of persons, either by bringing their minds or hearts under influence of education or religion, by relieving bodies from disease, suffering, or constraint, by assisting them to establish themselves in life, or by erecting public buildings or works or otherwise lessening burdens of government and it is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature. Goode's Adm'r v. Goode, 238 Ky. 620 , 38 S.W.2d 691, 1931 Ky. LEXIS 305 ( Ky. 1931 ).

In determining whether the uses of a trust are charitable, equity will look to the purposes to which the trust fund is to be devoted and the ends that may be attained by proper administration of that fund rather than to motive actuating the testator or donor. Goode's Adm'r v. Goode, 238 Ky. 620 , 38 S.W.2d 691, 1931 Ky. LEXIS 305 ( Ky. 1931 ).

In making determination as to whether trust comes within permitted uses as set out in this section, court is not bound by strict letter of the law but may take into account other uses not specifically named but which come within the spirit, equity and analogy of the law. Goode's Adm'r v. Goode, 238 Ky. 620 , 38 S.W.2d 691, 1931 Ky. LEXIS 305 ( Ky. 1931 ).

Use of trust fund for the higher education of young people in three (3) counties named in will and for trustees of testator’s church to be used by them to carry on and foster the manifold purposes of the church are permitted by this section. Goode's Adm'r v. Goode, 238 Ky. 620 , 38 S.W.2d 691, 1931 Ky. LEXIS 305 ( Ky. 1931 ).

A test of public charitable trust is indefiniteness of ultimate beneficiaries, for, if they are confined too particularly, the trust becomes a private one. Kentucky Christian Missionary Soc. v. Moren, 267 Ky. 358 , 102 S.W.2d 335, 1937 Ky. LEXIS 326 ( Ky. 1937 ).

Essential feature of trust for charitable use is that beneficiaries are uncertain, although they should be of a class described in general language. Kentucky Christian Missionary Soc. v. Moren, 267 Ky. 358 , 102 S.W.2d 335, 1937 Ky. LEXIS 326 ( Ky. 1937 ).

Devise of 500 acres of land to church in trust for purpose of maintaining the Church House was not a grant for a charitable or humane purpose, as distinguished from a grant for religious purposes, notwithstanding that the Church House was a residence not used for worship but only as a meeting place for various church organizations. Letcher's Trustee v. Letcher, 302 Ky. 448 , 194 S.W.2d 984, 1946 Ky. LEXIS 696 ( Ky. 1946 ).

A devise for the erection of a monument over the graves of testator’s family consisting of the testator and his wife was a devise for a humane purpose under the law authorizing charitable devises, and was valid. Ford v. Ford, 13 Ky. L. Rptr. 183 (1891).

A bequest of $3,000 to the Roman Catholic Bishop of Louisville “to be invested, and the income of which to be applied in rewards of merit to pupils in the parochial poor schools in L.” was certain and valid as the class to be benefited was plainly expressed, the intention unmistakable, the bequest could be readily carried out by the named trustee, under the supervision of the court, if necessary, and the object was a charitable one. Coleman v. O'Leary's Ex'r, 114 Ky. 388 , 70 S.W. 1068, 24 Ky. L. Rptr. 1248 , 1902 Ky. LEXIS 169 ( Ky. 1902 ).

A bequest to a named bishop for masses for the repose of the souls of testator and named members of his family was a valid charity enforceable by the court on application of the heirs for, while testator might have had a belief it would benefit his soul or the souls of others doing penance for their sins, it would also have been a benefit to all others who might have attended or participated in it. Coleman v. O'Leary's Ex'r, 114 Ky. 388 , 70 S.W. 1068, 24 Ky. L. Rptr. 1248 , 1902 Ky. LEXIS 169 ( Ky. 1902 ).

3.Duration and Termination.

Where deed conveying property to hospital association organized for purpose of accepting certain property for operation of hospital as monument to memory of grantor’s wife provided for reversion to grantor on failure of association to carry out the conditions set out in the deed and property later became unfit for hospital purposes, trust was not violated by arrangement under which association deeded property to county and county was to erect hospital and lease it to association as operating agent. State Bank & Trust Co. v. Madison County, 275 Ky. 501 , 122 S.W.2d 99, 1938 Ky. LEXIS 455 ( Ky. 1938 ).

Where will provided that property should be held in trust for the benefit of a certain church for 40 years “or” as long as the law of the state permitted, the intention of the testatrix was to establish a trust for the benefit of the church for 40 years, if that was lawful, and otherwise for whatever shorter period was lawful. Board of Nat'l Missions of Presbyterian Church v. Harrel's Trustee, 286 S.W.2d 905, 1956 Ky. LEXIS 432 ( Ky. 1956 ).

4.Cy Pres Doctrine.

The ministerial power of the English chancellor which was the progenitor of the cy pres doctrine does not exist in any American magistrate, judicial or ministerial, and none can exist until conferred by the legislature and the cy pres doctrine as a judicial doctrine has never been in force in this state. Adams v. Bohon, 176 Ky. 66 , 195 S.W. 156, 1917 Ky. LEXIS 15 ( Ky. 1917 ).

This section has uniformly been given a liberal construction by the courts so as to carry out, if possible, the humane and charitable purposes of the donor of the trust, and further, that no such trust will be permitted to fail for the want of a trustee, but it has not adopted the cy pres doctrine, permitting the trust funds to be expended for a charitable purpose though no specific one is expressly named. State Bank & Trust Co. v. Patridge, 198 Ky. 403 , 248 S.W. 1056, 1923 Ky. LEXIS 483 ( Ky. 1923 ).

Cy pres doctrine has not been adopted to extent of supplying beneficiary or purpose, where objects are not expressed in will. Russell v. Tyler, 224 Ky. 511 , 6 S.W.2d 707, 1928 Ky. LEXIS 642 ( Ky. 1928 ).

A court may effectuate testator’s intention by prescribing a different method of accomplishing it when the prescribed method fails, but cannot declare an object for testator. Harwood v. Dick, 286 Ky. 423 , 150 S.W.2d 704, 1941 Ky. LEXIS 255 ( Ky. 1941 ).

A trust in general language for educational purposes will be construed to permit the trustee to work in conjunction with the public school authorities. Harwood v. Dick, 286 Ky. 423 , 150 S.W.2d 704, 1941 Ky. LEXIS 255 ( Ky. 1941 ).

While the “cy pres” doctrine is not fully recognized in Kentucky, charitable trusts will be so construed as to make them to keep abreast of the times. Harwood v. Dick, 286 Ky. 423 , 150 S.W.2d 704, 1941 Ky. LEXIS 255 ( Ky. 1941 ).

A bequest to the “Children Orphans Home at Lynden” did not lapse by reason of the dissolution of the original Kentucky Children’s Home Society, a private corporation, and the taking over of its property by the state department of welfare, where the change occurred before testator’s death and was a matter of public knowledge, and it appeared from the will that the testator was primarily concerned with the result to be accomplished in the administration of the charity rather than with the ownership of the property employed. Kentucky Childrens Home v. Woods, 289 Ky. 20 , 157 S.W.2d 473, 1941 Ky. LEXIS 11 ( Ky. 1941 ).

The cy pres doctrine will be applied in Kentucky to the extent that it authorizes liberal rules of construction to uphold charitable bequests. It has never been adopted by Kentucky courts to the extent of supplying a beneficiary or purpose where these objects are not expressed by the donor, but it is fully operative where a general charitable intent is manifest and the object of the charity is identified or ascertainable, although the particular method of administering the charity is inadequate, illegal, or inappropriate, or happens to fail. Kentucky Childrens Home v. Woods, 289 Ky. 20 , 157 S.W.2d 473, 1941 Ky. LEXIS 11 ( Ky. 1941 ).

The cy pres doctrine does not authorize a court to supply a beneficiary or a purpose not expressed by the testator. Myers v. Davis, 311 Ky. 471 , 224 S.W.2d 690, 1949 Ky. LEXIS 1187 ( Ky. 1949 ).

5.Administration and Disposition of Funds.

A testator who resided in Kentucky devised his property, situated in Kentucky, in trust to establish and maintain in a sister state an orphans’ asylum for the nurture and education of orphans under the age of 17 years of members of a secret society of the sister state. Courts of equity of Kentucky would administer the trust in Kentucky, and require the trustee in Kentucky to protect the trust by paying the income over to a trustee appointed by the sister state, on it being found necessary to have two (2) trustees to carry the trust into effect. Green's Adm'r v. Fidelity Trust Co., 134 Ky. 311 , 120 S.W. 283, 1909 Ky. LEXIS 376 ( Ky. 1909 ).

Codicil imposing upon the devisee accepting a trust the duty to enter into terms with executors, binding and obligating devisee to establish and maintain an orphans’ home in perpetuity upon terms satisfactory to executors did not give executors power to defeat her purpose by imposing unreasonable conditions upon trustee and court properly declined to require trustee to agree not to operate or maintain any other similar institution in the state as a condition to receiving the trust funds. Young v. Davis, 200 Ky. 76 , 252 S.W. 100, 1923 Ky. LEXIS 4 ( Ky. 1923 ).

Where will created and provided for the maintenance of a trust for orphans and provided that if first-named organization failed to accept the trust, then to a second organization and, if it failed to accept the trust, then to a third organization but without making any provision if first organization accepted the trust but failed to maintain the orphanage, the second organization was entitled to have the trust property transferred to it and continue to operate an orphanage established by the first organization when after 16 years the first organization discontinued operations and declined to maintain the orphanage and surrendered the property to testator’s executor and the trust did not fail and the property revert to testator’s heirs. Young v. Davis, 200 Ky. 76 , 252 S.W. 100, 1923 Ky. LEXIS 4 ( Ky. 1923 ).

Where no specific amount is devised to any of the legatees, the gift being a certain portion of the income and the amount of this to be determined by the trustee and its officers, such legacies do not lapse, but when they cease to exist, the trustee continues to divide the income between the other legatees according to its discretion and KRS 394.500 , applying to lapsed legacies, is inapplicable. Gill's Ex'r v. Woman's Club of Louisville, 205 Ky. 731 , 266 S.W. 378, 1924 Ky. LEXIS 211 ( Ky. 1924 ).

Remaindermen could bring action under declaratory judgment act for construction of will and for declaration of their rights where will failed to point out with reasonable certainty the purposes of the charity and the beneficiaries thereof as required by this section. Gooding v. Watson's Trustee, 235 Ky. 562 , 31 S.W.2d 919, 1930 Ky. LEXIS 412 ( Ky. 1930 ).

Trust to church of which testator was a member to be used by its trustees to carry on and foster the manifold purposes of the church was not invalid because a part of the income was to be paid to the church trustees to be expended by them in the manner they deemed proper as the fund did not go to the trustees as individuals but as trustees of and for the church and it was not to be presumed that they would use the fund for purposes other than to carry on and foster the proper activities of the church. Goode's Adm'r v. Goode, 238 Ky. 620 , 38 S.W.2d 691, 1931 Ky. LEXIS 305 ( Ky. 1931 ).

The general rule is that where property is devised for charitable uses, the donor or a residuary legatee has no interest in the trust property save as one of the public and can only question the activities of the trustee by a bill preferred on behalf of himself and all others similarly situated, in conjunction with the attorney general. Greenway v. Irvine's Trustee, 279 Ky. 632 , 131 S.W.2d 705, 1939 Ky. LEXIS 322 ( Ky. 1939 ).

Where will created a charitable trust, with no provision for a remainder or reversionary interest in case of a breach or failure of the trust, the heirs of the testator had no power to maintain an action to compel enforcement of the trust or to have the trust declared void for breach. Greenway v. Irvine's Trustee, 279 Ky. 632 , 131 S.W.2d 705, 1939 Ky. LEXIS 322 ( Ky. 1939 ).

While the beneficiary of a trust may maintain a suit to enforce it, one not having a beneficial interest may not. Greenway v. Irvine's Trustee, 279 Ky. 632 , 131 S.W.2d 705, 1939 Ky. LEXIS 322 ( Ky. 1939 ).

Charitable trusts are favored in law. Mere delay or temporary suspension in carrying out their objectives will not be allowed to defeat them. Drake v. Chappel, 288 Ky. 610 , 157 S.W.2d 117, 1941 Ky. LEXIS 173 ( Ky. 1941 ).

Provisions in a charitable trust as to the use of the property will not be construed as conditions unless the intention that they shall be so construed is manifest. Pennebaker v. Pennebaker Home for Girls, 291 Ky. 12 , 163 S.W.2d 53, 1942 Ky. LEXIS 179 ( Ky. 1942 ).

Where a provision in the instrument creating a charitable trust as to the use of the property is merely a direction, and not a condition, a breach of duty by the trustee in using the property for a purpose other than the one designated will not work a forfeiture in favor of the heirs of the donor, but will furnish grounds for an action by the attorney general or the beneficiaries of the trust to compel compliance with the terms of the trust. Pennebaker v. Pennebaker Home for Girls, 291 Ky. 12 , 163 S.W.2d 53, 1942 Ky. LEXIS 179 ( Ky. 1942 ).

Where testator placed property in trust to maintain school for indigent girls but, because of decrease in value or trust assets, school could not be maintained and property was used merely as home for indigent girls, such departure from terms of trust did not work a forfeiture in favor of testator’s heirs. Pennebaker v. Pennebaker Home for Girls, 291 Ky. 12 , 163 S.W.2d 53, 1942 Ky. LEXIS 179 ( Ky. 1942 ).

Whether a provision in an instrument creating a charitable trust is a direction or a condition depends upon the intent of the settlor and, where the language used indicates that the settlor had a general charitable intent, the use of the property for a charitable purpose other than the one designated will not work a forfeiture. Pennebaker v. Pennebaker Home for Girls, 291 Ky. 12 , 163 S.W.2d 53, 1942 Ky. LEXIS 179 ( Ky. 1942 ).

6.Beneficiaries and Purpose Certain.

A bequest of a fund to a trustee, to be expended in securing an evangelist, and in the advancement of the principles of primitive Christianity as taught by the Christian church, is valid as a charitable bequest, as the purposes of the charity and the beneficiaries thereof are pointed out with reasonable certainty. Crawford's Heirs v. Thomas, 114 Ky. 484 , 54 S.W. 197, 1899 Ky. LEXIS 4 ( Ky. 1899 ).

Bequest to executor to be distributed by him to the poor in his discretion was valid under this section as it pointed out the purpose of the charity and the beneficiaries with reasonable certainty. Thompson v. Brown, 25 Ky. L. Rptr. 371 (1903).

A will authorizing an executor to dispose of an estate in such proportions as he may deem wise for the aid of a Bible training and missionary school for Christian workers, for the support of a missionary in the foreign field, to aid the cause of Bible holiness, including fire baptized holiness work, and to aid in the support of needy and destitute ministers of the gospel, points out with reasonable certainty the purposes of the charity, and the beneficiaries thereof. Leak's Heirs v. Leak's Ex'r, 78 S.W. 471, 25 Ky. L. Rptr. 1703 (1904).

A charitable trust providing that property should be held by a specified trust company as an endowment fund for a specified Bible society with a specified address, which was an incorporated charity engaged in distributing Bibles to the poor, the interest on the endowment, after paying the expenses of managing the fund, to be paid to the society annually or semiannually as it should become due, and to be used not in paying pre-existing debts of the society but in distributing the Bibles to the destitute of the earth, was sufficiently certain. Kasey v. Fidelity Trust Co., 131 Ky. 609 , 115 S.W. 739, 1909 Ky. LEXIS 45 ( Ky. 1909 ).

A bequest of one half (1/2) of testator’s estate to constitute a fund, the income of which to be used in employing evangelists to bring precious souls into God’s kingdom, in the mountain districts of Kentucky, was a valid charity under this section. Greer v. Synod, Southern Presbyterian Church, 150 Ky. 155 , 150 S.W. 16, 1912 Ky. LEXIS 846 ( Ky. 1912 ).

A bequest of property to C Street Church of Christ of Louisville, Ky., to aid the church in its local work, was sufficiently certain and definite under this section. Miller v. Tatum, 181 Ky. 490 , 205 S.W. 557, 1918 Ky. LEXIS 547 ( Ky. 1918 ).

A bequest that three fifths (3/5) of a designated fund “shall be sent to the country, and destitute places that the poor may have the gospel preached to them” points out with reasonable certainty the purposes of the charity and the beneficiaries thereof and is not void under this section. Miller v. Tatum, 181 Ky. 490 , 205 S.W. 557, 1918 Ky. LEXIS 547 ( Ky. 1918 ).

A bequest “to foreign missions: In this respect I regard Japan as an important field, and if Brother M is then living and in Japan, regard him as a good and worthy man to invest the money given to this portion of the work to best advantage” is not uncertain or indefinite as to purpose for which it is to be expended, where it is to be expended or in whose behalf and in addition, testator has named a person he knew and trusted to manage the expenditure. The bequest is valid under this section. Miller v. Tatum, 181 Ky. 490 , 205 S.W. 557, 1918 Ky. LEXIS 547 ( Ky. 1918 ).

Provision of will creating educational fund for education of worthy American boys and girls was valid as educational benevolence. Owens v. Owens' Ex'r, 236 Ky. 118 , 32 S.W.2d 731, 1930 Ky. LEXIS 699 ( Ky. 1930 ).

Legacy to “Kentucky Christian Missionary Society” to be used for benefit of “Christian churches” in home county and adjoining counties in discretion of executive committee was sufficiently definite as to purposes and beneficiaries as to constitute a valid charitable gift, although some of the 74 Christian churches existing in such counties might be disbanded and others organized in the future. Kentucky Christian Missionary Soc. v. Moren, 267 Ky. 358 , 102 S.W.2d 335, 1937 Ky. LEXIS 326 ( Ky. 1937 ).

A devise of realty to a church in trust for a particular charitable purpose is valid and, where the testator directs that the realty be sold and the proceeds be given to church, the devise is also valid. Spradlin v. Wiman, 272 Ky. 724 , 114 S.W.2d 1111, 1938 Ky. LEXIS 169 ( Ky. 1938 ).

A bequest made to a named cemetery company “as an endowment fund (no part of the principal to be spent)” was not invalid for uncertainty as to purpose or beneficiaries of the gift, notwithstanding that no directions were given as to what the money was to be used for, since the quoted phrase created a valid trust for the humane purpose of supporting and maintaining the cemetery, and for the benefit of all the burial lots therein. Epperson v. Clintonville Cemetery Co., 303 Ky. 852 , 199 S.W.2d 628, 1947 Ky. LEXIS 567 ( Ky. 1947 ).

A bequest in trust for the establishment of a home for poor men was not uncertain because no power was given to anyone to select the objects of the charity, as the trustees would have authority to act in the selection of a site for the home and in its establishment and management under the control and direction of the chancellor. Coleman v. O'Leary's Ex'r, 114 Ky. 388 , 70 S.W. 1068, 24 Ky. L. Rptr. 1248 , 1902 Ky. LEXIS 169 ( Ky. 1902 ).

A residuary bequest of remainder of estate in trust to the “Bishop of the Catholic Diocese of Louisville and three others to be chosen by him, for the establishment of a home for poor Catholic men” was not too indefinite as to the location in which the home should be established, and from which the beneficiaries should be selected, as equity could uphold a charitable trust by the court taking control of the fund, and directing its management, and settling who was the beneficiary thereof, and the will would be construed as requiring the establishment of the home in Louisville, and the selection of beneficiaries from that diocese. Coleman v. O'Leary's Ex'r, 114 Ky. 388 , 70 S.W. 1068, 24 Ky. L. Rptr. 1248 , 1902 Ky. LEXIS 169 ( Ky. 1902 ).

Law permitting testator to create a trust “for the relief or benefit of aged or impotent and poor people” meant “poor” who needed assistance and “aged” who were properly objects of charity and devise to executor to be distributed “to the poor in his discretion” was not objectionable for uncertainty of beneficiaries or purpose. Coleman v. O'Leary's Ex'r, 114 Ky. 388 , 70 S.W. 1068, 24 Ky. L. Rptr. 1248 , 1902 Ky. LEXIS 169 ( Ky. 1902 ).

7.— Beneficiaries.

A testamentary trust to establish and maintain an orphans’ asylum for the maintenance and education of the poor orphan children under 17 years of age of members of a secret society is not void for indefiniteness, and the beneficiaries are named with sufficient certainty. Green's Adm'r v. Fidelity Trust Co., 134 Ky. 311 , 120 S.W. 283, 1909 Ky. LEXIS 376 ( Ky. 1909 ).

A clause in a will creating a trust fund to assist aged unmarried women, preferably teachers, so that their last days may not be made miserable by extreme poverty not only designates a class to receive the benefits of the trust but narrows the class to unmarried women who are aged, preferably teachers, and implies that they be poor and is a valid charity under this section. State Bank & Trust Co. v. Patridge, 198 Ky. 403 , 248 S.W. 1056, 1923 Ky. LEXIS 483 ( Ky. 1923 ).

Devise limited to established educational or charitable institutions in a designated city similar to those enumerated in the will did not authorize trustee to choose purpose or select the beneficiary but limited trustee’s discretion to ascertain whether or not the recipient was within the classes enumerated in the will and the trust was sufficiently definite and certain as to beneficiaries to be enforced and therefore valid. Gill's Ex'r v. Woman's Club of Louisville, 205 Ky. 731 , 266 S.W. 378, 1924 Ky. LEXIS 211 ( Ky. 1924 ).

Board of education of church conference to which land was deeded in trust to maintain school for indigent children was not “beneficiary” thereof, so as to render trust void. Snyder v. General Conference Board, 205 Ky. 812 , 266 S.W. 661, 1924 Ky. LEXIS 242 ( Ky. 1924 ).

A bequest to be applied for masses to be celebrated for repose of soul of testator after his decease did not fail for want of a beneficiary, for the general class of the use having been designated by the testator, the trustee could select the immediate Catholic church to be the beneficiary. Obrecht v. Pujos, 206 Ky. 751 , 268 S.W. 564, 1925 Ky. LEXIS 1051 ( Ky. 1925 ).

Bequest for reconstruction of monasteries designated beneficiary with reasonable certainty. Obrecht v. Pujos, 206 Ky. 751 , 268 S.W. 564, 1925 Ky. LEXIS 1051 ( Ky. 1925 ).

Where class is designated but immediate objects left indefinite, trustee or court may designate object within class. Lightfoot v. Lightfoot, 207 Ky. 426 , 269 S.W. 529, 1925 Ky. LEXIS 103 ( Ky. 1925 ).

A devise to “the orphans’ homes of Kentucky” was not indefinite as to the object and purposes and each such home within the state at testatrix’s death became vested with its pro rata share of the total devise, be it large or small, and the difficulty in ascertaining the number of such homes did not make the devise indefinite as to beneficiaries. Violett's Adm'r v. Violett, 217 Ky. 59 , 288 S.W. 1016, 1926 Ky. LEXIS 7 ( Ky. 1926 ).

Devise in trust for benefit of Y. W. C. A. in stated city after such an association should be properly organized was valid. Russell v. Tyler, 224 Ky. 511 , 6 S.W.2d 707, 1928 Ky. LEXIS 642 ( Ky. 1928 ).

Charitable beneficiaries may be described in will as class, and trustee given power to select members of class described. Gooding v. Watson's Trustee, 235 Ky. 562 , 31 S.W.2d 919, 1930 Ky. LEXIS 412 ( Ky. 1930 ).

Fact that some discretion is invested in trustee does not invalidate trust. Owens v. Owens' Ex'r, 236 Ky. 118 , 32 S.W.2d 731, 1930 Ky. LEXIS 699 ( Ky. 1930 ).

Uncertainty as to beneficiaries is one of the distinct features or elements of a purely charitable purpose or use. Goode's Adm'r v. Goode, 238 Ky. 620 , 38 S.W.2d 691, 1931 Ky. LEXIS 305 ( Ky. 1931 ).

Where trust was created for the use of higher education of young people of three (3) counties and it was left to discretion of trustees to select worthy beneficiaries, such trust was not vague and uncertain as to beneficiaries. Goode's Adm'r v. Goode, 238 Ky. 620 , 38 S.W.2d 691, 1931 Ky. LEXIS 305 ( Ky. 1931 ).

Beneficiaries may be designated only as a class with particular objects of the testator’s benefaction to be determined by trustee appointed to administer the trust and such is a valid charitable trust, for the testator has chosen the class of beneficiaries and granted a power to the trustee to select only the individual members of the class. Kentucky Christian Missionary Soc. v. Moren, 267 Ky. 358 , 102 S.W.2d 335, 1937 Ky. LEXIS 326 ( Ky. 1937 ).

Bequest “to the needy widows’ home or children’s home” with no kind of identification was not invalid for failure to point out beneficiary with reasonable certainty as it was a specific bequest for unidentified classes within a designated territory, it being understood as intending either a widows’ home or a children’s home of testatrix’s county. Bush's Ex'r v. Mackoy, 267 Ky. 614 , 103 S.W.2d 95, 1937 Ky. LEXIS 370 ( Ky. 1937 ).

Under law of charitable trust, where purpose of the charity is made reasonably certain by instrument creating it, beneficiaries may be designated as a class only, leaving particular beneficiaries within the class to be determined by the trustee or by the court. Bush's Ex'r v. Mackoy, 267 Ky. 614 , 103 S.W.2d 95, 1937 Ky. LEXIS 370 ( Ky. 1937 ).

Trust of residue of estate to “the Catholic Diocese of Kentucky, at Louisville, Kentucky, for the education of young priests” was valid devise to the Roman Catholic Bishop at Louisville, where the Catholic Diocese of Kentucky at Louisville had been created as a corporation sole under the name of the “Roman Catholic Bishop of Louisville,” although there were other denominations in Louisville using the words “Catholic” and “Bishop.” Shrader v. Erickson's Ex'r, 284 Ky. 449 , 145 S.W.2d 63, 1940 Ky. LEXIS 523 ( Ky. 1940 ).

Where the testator left a devise to the Widows and Orphans Home of the Church of Christ, Louisville, Ky., and no such institution existed but there was a home for widows and orphans called The Christian Church Homes of Kentucky, the will clearly exhibited a charitable purpose, and it named a distinct class of persons who were to be the beneficiaries, and the fact that the institution was not named with technical accuracy in the will would not justify violating the testator’s charitable purpose. Davis v. Cary, 429 S.W.2d 411, 1968 Ky. LEXIS 752 ( Ky. 1968 ).

8.— Purpose.

Testamentary trust specifying the Southern Presbyterian Church as the object of testatrix’s bounty, and investing her executors and trustees with discretion to select the particular activities of the church to which the property should be applied, was sufficiently specific to come within this section. Kratz v. Slaughter's Ex'rs, 185 Ky. 256 , 214 S.W. 878, 1919 Ky. LEXIS 280 ( Ky. 1919 ).

Purpose of the charity was pointed out with reasonable certainty where devise was to college controlled by a church for the establishment of an educational fund or endowment for the support of a Bible chair for education of preachers of the gospel and to teach designated doctrines of the church which doctrines were then being taught by the college and were held by testator and a faction of the church although not by all members. Bailey v. Waddy, 195 Ky. 415 , 243 S.W. 21, 1922 Ky. LEXIS 373 ( Ky. 1922 ).

When a devise is made to a society or organization such as a named missionary society founded for and engaged in a specific work without setting out in the will a different use to which the devise is to be applied, the mere devise sufficiently indicates the purpose intended and may be enforced in equity. American Christian Mission Soc. v. Tate, 198 Ky. 621 , 250 S.W. 483, 1923 Ky. LEXIS 578 ( Ky. 1923 ).

Where bequest was a life estate to husband and remainder to be used to build church as near as designated church as land could be bought and the church testatrix had attended during her lifetime was discontinued and a new church built within two (2) miles of the old church after her death but during her husband’s lifetime, her intention and purpose was carried out by, after her husband’s death, equipping and repairing the new church. Lightfoot v. Lightfoot, 207 Ky. 426 , 269 S.W. 529, 1925 Ky. LEXIS 103 ( Ky. 1925 ).

Bequest for purpose of creating federal monument fund was valid. Owens v. Owens' Ex'r, 236 Ky. 118 , 32 S.W.2d 731, 1930 Ky. LEXIS 699 ( Ky. 1930 ).

Clause in will giving residue to the Catholic Diocese at Louisville “for the education of young priests” did not disclose lack of specification of class of beneficiaries, within rule that one essential of trust for charitable purposes is that beneficiaries are uncertain, although they should be of class described in general language. Shrader v. Erickson's Ex'r, 284 Ky. 449 , 145 S.W.2d 63, 1940 Ky. LEXIS 523 ( Ky. 1940 ).

Where clause in will giving residue “to the Catholic Diocese of Kentucky, at Louisville, Kentucky, for the education of young priests” was attacked as uncertain and allegedly ambiguous, aid was allowed to ascertain purpose of testatrix. Shrader v. Erickson's Ex'r, 284 Ky. 449 , 145 S.W.2d 63, 1940 Ky. LEXIS 523 ( Ky. 1940 ).

Where certain land was devised to widow for life and upon her death or remarriage to daughter for life and upon her death to her son for life with provision that property should not be transferred to any person until their death when it was to sold to the highest bidder and the proceeds put into government bonds with the interest on the bonds to go to a cemetery for benefit of graves, the daughter’s son took a life estate and the bequest to the cemetery was valid. Boggess v. Inabnit, 284 Ky. 673 , 145 S.W.2d 838, 1940 Ky. LEXIS 558 ( Ky. 1940 ).

9.Beneficiaries and Purpose Uncertain.

A clause in a will which directs the executor to dispose of the residuary estate according to his judgment for good and charitable purposes is invalid for failing, as required by this section, to point out the purpose and beneficiary. Gerick's Ex'r v. Gerick, 158 Ky. 478 , 165 S.W. 695, 1914 Ky. LEXIS 663 ( Ky. 1914 ).

A gift to charity, designating no beneficiary or charitable purpose, was void under this section, for uncertainty. Simmon's Ex'r v. Hunt, 171 Ky. 397 , 188 S.W. 495, 1916 Ky. LEXIS 380 ( Ky. 1916 ).

An agreement of owners that money be used for charitable purposes, constituting a gift void for uncertainty, could not support a valid executed trust, by the one named as trustee bequeathing it in trust for named beneficiaries. Simmon's Ex'r v. Hunt, 171 Ky. 397 , 188 S.W. 495, 1916 Ky. LEXIS 380 ( Ky. 1916 ).

Where a court could not, because of uncertainty, enforce an agreement as a charitable trust, one designated as trustee could not. Simmon's Ex'r v. Hunt, 171 Ky. 397 , 188 S.W. 495, 1916 Ky. LEXIS 380 ( Ky. 1916 ).

The purpose of the charity was uncertain where will provided trustee was to pay the principal of the trust on the death of the life tenant to such charitable organizations in two (2) designated cities, excluding educational institutions, “as in its then judgment may be right and proper.” Gooding v. Watson's Trustee, 235 Ky. 562 , 31 S.W.2d 919, 1930 Ky. LEXIS 412 ( Ky. 1930 ).

That part of bequest which provided that trustee in alternative might distribute the funds “as he thinks best wherever he thinks needed” was clearly invalid for want of compliance with the law and because it was in effect but the delegation of authority to make the will and dispose of the property according to the trustee’s purposes rather than the testator’s. Bush's Ex'r v. Mackoy, 267 Ky. 614 , 103 S.W.2d 95, 1937 Ky. LEXIS 370 ( Ky. 1937 ).

Where testator designates neither class nor object of charitable bequest, and leaves choice to the trustee, the bequest fails under law as an attempt to delegate testator’s authority to make the will. Bush's Ex'r v. Mackoy, 267 Ky. 614 , 103 S.W.2d 95, 1937 Ky. LEXIS 370 ( Ky. 1937 ).

Although will provided that in event institution was not designated by testator, it should be selected by official of German city, this was not a reasonably certain pointing out of the purposes and beneficiaries of the charitable gifts. Stoeer v. Meyer, 285 Ky. 387 , 147 S.W.2d 1041, 1941 Ky. LEXIS 390 ( Ky. 1941 ).

Where will stated testator would go to Germany to select institution to receive bequest and would designate the selected institution by a codicil, but testator did not make the contemplated trip nor add a codicil, the unfilled expressed intentions were sufficient to throw a cloud of doubt on the attempted gift. Stoeer v. Meyer, 285 Ky. 387 , 147 S.W.2d 1041, 1941 Ky. LEXIS 390 ( Ky. 1941 ).

Where will provided trustees should determine worthy educational or charitable institutions or individuals and gave trustees sole discretion to determine beneficiaries, it was void as the particular charity to be benefited was uncertain. Hoenig v. Newmark, 306 S.W.2d 838, 1957 Ky. LEXIS 61 ( Ky. 1957 ).

A devise to “charitable and religious organizations” does not state the object or purpose of the devise with reasonable certainty. Bank of Maysville v. Calvert, 481 S.W.2d 24, 1972 Ky. LEXIS 208 ( Ky. 1972 ).

Where will’s residuary clause was illegible in the portion which described the purposes of the trust which it purported to establish, the bequest failed. Smith v. Snow, 106 S.W.3d 467, 2002 Ky. App. LEXIS 2328 (Ky. Ct. App. 2002).

A bequest to a bishop to be applied to any charitable uses was invalid. Coleman v. O'Leary's Ex'r, 114 Ky. 388 , 70 S.W. 1068, 24 Ky. L. Rptr. 1248 , 1902 Ky. LEXIS 169 ( Ky. 1902 ).

A bequest to the Jesuit order “for the purposes of education or religion” was not to “an identified or ascertainable object” which could be judicially determined and thereby effectuate the declared intention of the donor and was invalid. Coleman v. O'Leary's Ex'r, 114 Ky. 388 , 70 S.W. 1068, 24 Ky. L. Rptr. 1248 , 1902 Ky. LEXIS 169 ( Ky. 1902 ).

10.— Beneficiaries.

In a suit involving the validity of a will which directs the executor to dispose of the residuary estate according to his judgment for good and charitable purposes, he may not join as parties religious, educational, and charitable organizations which he has selected to receive the gift on his mere allegation that they are such beneficiaries as the testator had in mind and intended as the recipients of the gift. Gerick's Ex'r v. Gerick, 158 Ky. 478 , 165 S.W. 695, 1914 Ky. LEXIS 663 ( Ky. 1914 ).

Where no cestui que trust was designated, no court could enforce agreement as a trust. Simmon's Ex'r v. Hunt, 171 Ky. 397 , 188 S.W. 495, 1916 Ky. LEXIS 380 ( Ky. 1916 ).

11.Practicability of Enforcement Immaterial.

Where it was practicable under existing conditions to execute a trust establishing a chair for teaching designated religious doctrines at a college, the practicability of enforcement of the terms of the trust if the authorities of the college should change their views had not arisen and were not up for consideration of the court. Bailey v. Waddy, 195 Ky. 415 , 243 S.W. 21, 1922 Ky. LEXIS 373 ( Ky. 1922 ).

Research References and Practice Aids

Cross-References.

Property owned by church, title, KRS 273.140 .

Kentucky Law Journal.

Noyes, Validity of Charitable Subscriptions in Kentucky, 33 Ky. L.J. 50 (1944).

Covington, The Cy Pres Doctrine in Kentucky, 35 L.J. 95 (1946).

Roberts, Kentucky Decisions on Future Interests (1938-1953), 42 Ky. L.J. 3 (1953).

381.270. Gift to charity not defeated for want of trustee.

No charity shall be defeated for want of a trustee or other person in whom the title may vest; but courts of equity may uphold the charity by appointing trustees, if there be none, or by taking control of the fund or property, and directing its management and settling who is the beneficiary thereof.

History. 318.

NOTES TO DECISIONS

1.Want of Trustee.

Equity never allows a trust to fail for want to a trustee. Willett v. Willett, 197 Ky. 663 , 247 S.W. 739, 1923 Ky. LEXIS 685 ( Ky. 1923 ). See State Bank & Trust Co. v. Patridge, 198 Ky. 403 , 248 S.W. 1056, 1923 Ky. LEXIS 483 ( Ky. 1923 ).

Trust for charitable purposes does not fail for want of trustee. Obrecht v. Pujos, 206 Ky. 751 , 268 S.W. 564, 1925 Ky. LEXIS 1051 ( Ky. 1925 ).

2.Court’s Power to Supply Trustees.

A court of equity will supply an original want of trustees, or, if necessary, displace old and create new ones. Goode's Adm'r v. Goode, 238 Ky. 620 , 38 S.W.2d 691, 1931 Ky. LEXIS 305 ( Ky. 1931 ). See Young v. Redmon's Trustee, 300 Ky. 418 , 189 S.W.2d 401, 1945 Ky. LEXIS 560 ( Ky. 1945 ).

3.Selection of Colleagues by Trustee.

Power given to named trustee to select three cotrustees was valid. Coleman v. O'Leary's Ex'r, 114 Ky. 388 , 70 S.W. 1068, 24 Ky. L. Rptr. 1248 , 1902 Ky. LEXIS 169 ( Ky. 1902 ).

Cited:

Davis v. Cary, 429 S.W.2d 411, 1968 Ky. LEXIS 752 ( Ky. 1968 ).

381.280. Forfeiture of right to property for killing or victimizing decedent — Exemptions — Escheat to elder and vulnerable victims trust fund.

  1. If the husband, wife, heir-at-law, beneficiary under a will, joint tenant with the right of survivorship or the beneficiary under any insurance policy takes the life of the decedent or victimizes the decedent by the commission of any felony under KRS Chapter 209 and in either circumstance is convicted therefor, the person so convicted forfeits all interest in and to the property of the decedent, including any interest he or she would receive as surviving joint tenant, and the property interest or insurable interest so forfeited descends to the decedent’s other heirs-at-law, beneficiaries, or joint tenants, unless otherwise disposed of by the decedent. A judge sentencing a person for a offense that triggers a forfeiture under this section shall inform the defendant of the provisions of this section at sentencing.
  2. A forfeiture under subsection (1) of this section:
    1. Shall not apply in cases involving the commission of any felony under KRS Chapter 209 where the will, deed, or insurance policy was executed prior to January 1, 2012;
    2. Shall not apply in cases where the decedent, with knowledge of the person’s disqualification, reaffirmed the right of the husband, wife, heir-at-law, beneficiary under a will, joint tenant with the right of survivorship, or insurance policy beneficiary to receive the property by executing a new or modified will or codicil, insurance policy or policy modification, or deed; and
    3. Shall not apply in cases of a felony under KRS Chapter 209 committed prior to January 1, 2012.
  3. If, after the provisions of this section are applied, there are no other heirs-at-law, beneficiaries, or joint tenants of the decedent as to all or part of the interest forfeited, the forfeited interest shall escheat to the state under KRS Chapter 393. The Department of the Treasury shall, after liquidation of the interest, pay the proceeds into the elder and vulnerable adult victims trust fund established in KRS 41.305 .

History. 1406a: amend. Acts 2011, ch. 43, § 2, effective January 1, 2012; 2011, ch. 43, § 3, effective June 8, 2011; 2012, ch. 95, § 1, effective July 12, 2012.

NOTES TO DECISIONS

1.Constitutionality.

This section applies uniformly to all members of the classes named throughout the state and its general legislation and not special or local legislation in violation of Const., § 59. Wilson v. Bates, 313 Ky. 333 , 231 S.W.2d 39, 1950 Ky. LEXIS 873 ( Ky. 1950 ).

This section was new legislation complete in itself, without reference to other laws and it did not amend or purport to amend any prior legislation and it was not necessary to set out or republish any part of any old law that might have been changed or repealed by the new law and it did not violate Const., § 51. Wilson v. Bates, 313 Ky. 333 , 231 S.W.2d 39, 1950 Ky. LEXIS 873 ( Ky. 1950 ).

2.Application.

The legislature did not intend by the enactment of this section to punish or work hardship upon a child whose parent had committed a wrongful act and where husband killed his wife and himself, one half (1/2) of property held under a tenancy by entirety went to husband’s heirs and one half (1/2) to wife’s heirs. Cowan v. Pleasant, 263 S.W.2d 494, 1953 Ky. LEXIS 1154 ( Ky. 1953 ).

This section has no application in an action for wrongful death under KRS 411.130 . Moore v. Citizens Bank of Pikeville, 420 S.W.2d 669, 1967 Ky. LEXIS 126 ( Ky. 1967 ).

3.— Intent.

Intent is not required in order for this section to apply. Mounts v. United States, 838 F. Supp. 1187, 1993 U.S. Dist. LEXIS 16996 (E.D. Ky. 1993 ).

4.Forfeiture.

Murderer convicted of killing his parents forfeited his right to inherit from either of them, and for the purposes of inheritance or taking under a will, the murderer is to be considered as predeceasing his parents and murderer’s only child would inherit. Bates v. Wilson, 313 Ky. 572 , 232 S.W.2d 837, 1950 Ky. LEXIS 906 ( Ky. 1950 ).

Where husband had been convicted of a felony for taking the life of his wife, he was barred from asserting any interest he would receive as a surviving tenant in residence owned by them. Therefore, the entire value of the residence was a part of the estate of the wife. First Kentucky Trust Co. v. United States, 737 F.2d 557, 1984 U.S. App. LEXIS 21268 (6th Cir. Ky. 1984 ).

The conviction of wife of decedent for reckless homicide, a felony homicide, in causing decedent’s death operated as a matter of law under this section to forfeit any rights she otherwise might have had to decedent’s CSRS pension benefits and consequently such benefits were payable to decedent’s children by a previous marriage. Mounts v. United States, 838 F. Supp. 1187, 1993 U.S. Dist. LEXIS 16996 (E.D. Ky. 1993 ).

Because an individual who strangled the person with whom the individual lived had shared the property as joint tenants and not as tenants by the entirety, pursuant to KRS 381.280 the individual did not forfeit the individual’s one-half interest in the property by killing the person, but instead only forfeited the individual’s right of survivorship to the person’s one-half interest. Newton v. Newton, 365 S.W.3d 565, 2011 Ky. App. LEXIS 181 (Ky. Ct. App. 2011).

5.Mortgage on Forfeited Property.

A mortgage executed by son on parents’ real estate after he killed them was without effect for, by his acts, he forfeited any right to inherit from them and no part of their estate was vested in him by reason of their death. Wilson v. Bates, 313 Ky. 333 , 231 S.W.2d 39, 1950 Ky. LEXIS 873 ( Ky. 1950 ).

6.Purchase by Barred Heir.

While this law barred son who had killed father from inheriting the father’s land, it did not bar him from buying the land from those who did inherit it. Pierce v. Pierce, 309 Ky. 77 , 216 S.W.2d 408, 1948 Ky. LEXIS 1072 ( Ky. 1948 ).

7.Division of Property.

Where husband, who held insured property with wife as tenants by entireties, murdered wife, neither he nor his heirs could claim all of the property under a right of survivorship; equity dictates under the circumstances that the property be divided equally between the husband or his heirs and the heirs of the deceased spouse. This result was not in contravention of this section which merely preempts operation of the right of survivorship in such situations. Heuser v. Cohen, 655 S.W.2d 9, 1982 Ky. App. LEXIS 205 (Ky. Ct. App. 1982).

8.Tenants by the Entirety.

Where a husband caused the death of his wife, and one (1) month later certain residential property that they had held as tenants by the entirety was totally destroyed by fire, equitable principles dictated that the husband was entitled to retain a one-half (1/2) interest in the casualty insurance proceeds and the other half would be paid to the estate of the deceased wife. Heuser v. Cohen, 630 S.W.2d 79, 1982 Ky. App. LEXIS 296 (Ky. Ct. App. 1982).

9.Life Insurance Policies.

Proceeds of insurance policies on the life of wife killed by husband, which were owned by husband and payable to him as beneficiary, were correctly included in wife’s estate under § 2042(1), Internal Revenue Code, on the basis of this section even though the contingent beneficiaries were the husband or his executors or administrators, since husband was alive at the time of wife’s death and no executors or administrators existed. First Kentucky Trust Co. v. United States, 737 F.2d 557, 1984 U.S. App. LEXIS 21268 (6th Cir. Ky. 1984 ).

Where husband killed wife, to the extent that the wife’s will named a residuary legatee other than her husband, the proceeds of insurance policies on the wife of which husband was the beneficiary were payable under this section to the executor of the wife’s estate for distribution to such legatee subject to the payment of debts and other claims and charges against the estate; however if the husband was the only named legatee, the insurance proceeds would pass as intestate property to wife’s heirs and as such would also be subject to any claims and charges against the estate. First Kentucky Trust Co. v. United States, 737 F.2d 557, 1984 U.S. App. LEXIS 21268 (6th Cir. Ky. 1984 ).

Since federal law rather than state law governed action where natural children of deceased were seeking benefits of deceased’s federal life insurance where deceased was killed by wife who had been named as beneficiary, this section was not relevant in determining the receipt of the life insurance benefits. Mounts v. United States, 838 F. Supp. 1187, 1993 U.S. Dist. LEXIS 16996 (E.D. Ky. 1993 ).

10.Appeal of Conviction.

With regard to husband who was convicted of killing his wife, where he contended that until his appeal is concluded, he cannot technically be considered convicted under this section the better rule would be to allow the provisions of this section to apply as soon as a conviction occurs, regardless of whether an appeal is taken. Roberts v. Wilcox, 805 S.W.2d 152, 1991 Ky. App. LEXIS 26 (Ky. Ct. App. 1991).

Cited:

Ryburn v. First Nat’l Bank, 399 S.W.2d 313, 1965 Ky. LEXIS 25 ( Ky. 1965 ).

Opinions of Attorney General.

A widow would not be entitled to a survivor’s benefit under KRS 161.520 if she is convicted of a felony for her husband’s death. OAG 70-692 .

Where a widow is under indictment resulting from her husband’s death, no payments should be made as a widow’s benefit under KRS 161.520 until such time as she is acquitted on the charge. OAG 70-692 .

A person who causes the death of another is precluded from inheriting from the deceased if the person is convicted of a felony for taking the life of the decedent. OAG 82-162 .

Research References and Practice Aids

Kentucky Law Journal.

Griffin, Right of Child of Slayer to Inherit from Slayer’s Victim — Bates v. Wilson, 39 Ky. L.J. 496 (1951).

Kentucky Law Survey, Bratt, Property, 73 Ky. L.J. 459 (1984-85).

Bratt, Family Protection Under Kentucky’s Inheritance Laws: Is the Family Really Protected? 76 Ky. L.J. 387 (1987-88).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Hill, No-Fault Death: Wedding Inheritance Rights to Family Values., 94 Ky. L.J. 319 (2005/2006).

Northern Kentucky Law Review.

2008 Criminal Law Issue: Note: Kentucky’s Statutory Collateral Consequences Arising From Felony Convictions: A Practitioner’s Guide, 35 N. Ky. L. Rev. 413 (2008).

Treatises

Petrilli, Kentucky Family Law, Property Rights, § 14.8.

ALR

Felonious killing of one cotenant or tenant by the entireties by the other as affecting the latter’s right in the property. 42 A.L.R.3d 1116.

381.290. Rights of alien intending to be naturalized.

After declaring his intention to become a citizen of the United States, according to the forms required by law, any alien, not an enemy, may recover, inherit, hold, and pass by descent, devise or otherwise, any interest in real or personal property, in the same manner as if he were a citizen of this state.

History. 334.

NOTES TO DECISIONS

1.Descent.

At common law, an alien cannot take by descent. Ripley v. Von Zedtwitz, 201 Ky. 513 , 256 S.W. 1106, 1923 Ky. LEXIS 302 ( Ky. 1923 ).

2.Escheat.

Board of education had the power to institute suit through the Attorney General in the name of the Commonwealth to escheat the land of an alien owner for use and benefit of the school district. Commonwealth ex rel. Attorney Gen. v. Tamer, 293 Ky. 357 , 169 S.W.2d 19, 1943 Ky. LEXIS 626 ( Ky. 1943 ).

3.Common Law.

An alien could take lands by purchase, though not by descent, at common law. White v. White, 59 Ky. 185 , 1859 Ky. LEXIS 76 ( Ky. 185 9 ).

At common law, an alien could not take land by inheritance; this was still in force in Kentucky except so far as it had been modified by law. White v. White, 59 Ky. 185 , 1859 Ky. LEXIS 76 ( Ky. 185 9 ). See Hunt v. Warnicke's Heirs, 3 Ky. 61 ( Ky. 1806 ).

4.Devise Contingent on Becoming Citizen.

A devise to testator’s half brother, depending on the contingency of his becoming a citizen of the United States or being otherwise qualified to hold real estate, was a good executory devise. Beard v. Rowan, 34 U.S. 301, 9 L. Ed. 135, 1835 U.S. LEXIS 352 (U.S. 1835).

Opinions of Attorney General.

Real property owned by a company incorporated in the United States, the shares of which are owned partially or wholly by aliens, is not subject to the escheat provisions in KRS 381.290 to 381.340 and may be indefinitely held by the corporation, since the alien does not own real property but owns personal property (stock) as permitted by KRS 381.320 . OAG 81-248 .

KRS 381.290 to KRS 381.340 are constitutional unless contrary to treaty with the government of which such alien is a citizen or subject. OAG 81-248 .

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

381.300. Realty of nonresident alien liable to escheat after eight years unless he becomes citizen.

  1. Except as otherwise provided in this chapter, the real estate of a nonresident alien may be escheated to the state at any time after the expiration of eight (8) years after the time he acquires title thereto.
  2. Any alien who has purchased, or contracted to purchase, any real estate, or who holds or has title thereto, and who becomes a citizen of the United States before the property is escheated, and any purchaser, lessee, heir, or devisee, from him, if a citizen of the United States, who becomes the owner thereof by purchase or inheritance before the property is escheated, shall take and hold the property free and released from any right or claim of the state by reason of such person’s having been an alien.

History. 335: amend. Acts 1984, ch. 275, § 1, effective July 13, 1984.

NOTES TO DECISIONS

1.Institution of Action.

The board of education of the school district in which property owned by an alien is situated may institute an action in the name of the commonwealth to escheat the property. If the board has authorized the action, it is proper for the action to be brought by the attorney general as relator. Commonwealth ex rel. Attorney Gen. v. Tamer, 293 Ky. 357 , 169 S.W.2d 19, 1943 Ky. LEXIS 626 ( Ky. 1943 ).

Opinions of Attorney General.

Under this statute there is no automatic reversion to the State, thus an action would be required to be filed in Circuit Court to escheat real property of an alien to the Commonwealth. OAG 76-332 .

Inasmuch as a corporation is a legal entity distinct from its shareholders, the property of a corporation, the shares of which are partially or wholly owned by a nonresident alien, would not be subject to the escheat provisions of this section. OAG 77-576 .

The property of a corporation, the shares of which are owned partially or wholly by a nonresident alien, are not subject to the escheat provisions noted above and may be properly held by the foreign interest. OAG 78-585 .

This section and KRS 381.320 are constitutional, but, to enforce them, an action must be filed in Circuit Court to escheat the property since there is no automatic reversion. OAG 78-678 .

Real property owned by a firm incorporated in the United States, the shares of which are owned partially or wholly by aliens, is not subject to the escheat provisions of KRS 381.300 to 381.340 and may be properly and indefinitely held by the foreign interests. OAG 79-161 .

Research References and Practice Aids

Cross-References.

Escheat, property subject to, proceedings, KRS 393.020 , 393.150 , 393.160 .

Kentucky Bench & Bar.

Mazzoli & Hamilton, Immigration Considerations for the Kentucky Practitioner, Vol. 60, No. 4, Fall 1996, Ky. Bench & Bar 6.

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

381.310. Spouses and children of citizens — Property rights.

Any person whose spouse is a citizen of the United States, and any person whose father or mother, at the time of his birth, was a citizen thereof, although born out of the United States, may take and hold real or personal estate by devise, purchase, descent, or distribution.

History. 336: amend. Acts 1974, ch. 386, § 70.

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

381.320. Alien’s right as to personalty — As to realty if resident.

Any alien, not an enemy, may take and hold any personal property except chattels real. If such alien resides within this state he may take and hold any lands for the purposes of residence, or of occupation by him or his servants, or for the purpose of any business, trade, or manufacture, for as long as he remains a resident of the state. An alien so taking and holding shall have like rights, remedies and exemptions concerning such property as if he were a citizen of the United States.

History. 337: amend. Acts 1984, ch. 275, § 2, effective July 13, 1984.

Opinions of Attorney General.

The property of a corporation, the shares of which are owned partially or wholly by a nonresident alien, are not subject to the escheat provisions noted above and may be properly held by the foreign interest. OAG 78-585 .

KRS 381.300 and this section are constitutional, but, to enforce them, an action must be filed in circuit court to escheat the property since there is no automatic reversion. OAG 78-678 .

Real property owned by a company incorporated in the United States, the shares of which are owned partially or wholly by aliens, is not subject to the escheat provisions in KRS 381.290 to 381.340 and may be indefinitely held by the corporation, since the alien does not own real property but owns personal property (stock) as permitted by this section. OAG 81-248 .

A foreign corporation duly qualified to do business in Kentucky may own property in Kentucky, even if all the shareholders are nonresident aliens. Also, a Kentucky corporation solely owned by a foreign corporation may own property in Kentucky. OAG 82-291 .

This section specifically allows aliens to take and hold personal property, such as stock. OAG 82-291 .

Research References and Practice Aids

Kentucky Bench & Bar.

Mazzoli & Hamilton, Immigration Considerations for the Kentucky Practitioner, Vol. 60, No. 4, Fall 1996, Ky. Bench & Bar 6.

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

381.330. Nonresident alien — Rights as to real property inherited.

If real estate passes to a nonresident alien by descent or devise, such property may be held and alienated by such nonresident alien for eight (8) years after the final settlement of the decedent’s estate from which it was acquired. If such heir or devisee is a minor, the real estate may be held for his benefit by a guardian or curator, and may be sold by proper proceeding had in conformity with the laws regulating sales of infant’s real estate, if commenced within such eight (8) years.

History. 338.

NOTES TO DECISIONS

1.Construction.

This section does not provide that real property, which has been held by a nonresident alien devisee for more than eight (8) years, shall pass to the testator’s next of kin who are capable of inheriting, but leaves the common law rule in force, and under that rule only the state may question the right of an alien to hold real property. Ripley v. Von Zedtwitz, 201 Ky. 513 , 256 S.W. 1106, 1923 Ky. LEXIS 302 ( Ky. 1923 ).

This section not only confirms the right of a nonresident alien to take real estate by devise, but confers the additional right to hold the property for a period of eight (8) years even as against the state, a right which did not exist at common law. Ripley v. Von Zedtwitz, 201 Ky. 513 , 256 S.W. 1106, 1923 Ky. LEXIS 302 ( Ky. 1923 ).

This section confers on an alien the additional right to hold realty for a period of eight (8) years, even as against the state. Ripley v. Sutherland, 40 F.2d 785, 1930 U.S. App. LEXIS 3239 (D.C.), cert. denied, 282 U.S. 865, 51 S. Ct. 40, 75 L. Ed. 765, 1930 U.S. LEXIS 239 (U.S. 1930).

Under this section property devised to alien does not pass to testator’s next of kin after eight (8) year period during which alien may hold it by law but to state. Ripley v. Sutherland, 40 F.2d 785, 1930 U.S. App. LEXIS 3239 (D.C.), cert. denied, 282 U.S. 865, 51 S. Ct. 40, 75 L. Ed. 765, 1930 U.S. LEXIS 239 (U.S. 1930).

2.Common Law.

At common law alien could take realty by grant or devise, and title was good against all but sovereign. Ripley v. Sutherland, 40 F.2d 785, 1930 U.S. App. LEXIS 3239 (D.C.), cert. denied, 282 U.S. 865, 51 S. Ct. 40, 75 L. Ed. 765, 1930 U.S. LEXIS 239 (U.S. 1930).

3.Jurisdiction.

Federal trading with the enemy act of 1917 took from the Commonwealth no right it had of escheating lands under this section, but only required it to prosecute any such action in the federal district courts. Commonwealth ex rel. Attorney Gen. v. Von Zedtwitz, 215 Ky. 413 , 285 S.W. 224, 1926 Ky. LEXIS 742 (Ky.), cert. denied, 273 U.S. 735, 47 S. Ct. 243, 71 L. Ed. 866, 1926 U.S. LEXIS 313 (U.S. 1926).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

381.340. Nonresident alien — Distribution of property on death of.

If a nonresident alien obtains possession of real estate by descent or devise, and dies before the expiration of the period limiting his right of enjoyment or sale, the right thus acquired shall pass by descent or devise. If such heir or devisee is a nonresident alien, the property of the deceased nonresident alien shall be held or disposed of within the period applicable to such alien as provided in KRS 381.290 to 381.330 .

History. 339.

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

381.350. Waste by tenant for life or years — Forfeiture — Damages.

If any tenant for life or years commits waste during his estate or term, of anything belonging to the tenement so held, without special written permission to do so, he shall be subject to an action of waste, shall lose the thing wasted, and pay treble the amount at which the waste is assessed.

History. 2328.

NOTES TO DECISIONS

1.Construction.

A court of chancery will restrain equitable waste only when it is shown that the particular tenant has been guilty of a wanton and unconscientious abuse of his rights, ruinous to the interests of other parties. Continental Fuel Co. v. Haden, 182 Ky. 8 , 206 S.W. 8, 1918 Ky. LEXIS 308 ( Ky. 1918 ).

This section is very similar to, and was undoubtedly modeled after, the old English statute regarding waste, and should be construed as the English statute was construed, which statute directed that all tenants, except guardians who forfeited their wardship and paid single damages, lose and forfeit the place where waste was committed and also pay treble damages to the person having the inheritance. Salyer's Guardian v. Keeton, 214 Ky. 643 , 283 S.W. 1015, 1926 Ky. LEXIS 397 ( Ky. 1926 ).

Modern action for waste is in nature of action on case, and is action ex delicto. Cohen v. Reif, 223 Ky. 603 , 4 S.W.2d 388, 1928 Ky. LEXIS 393 ( Ky. 1928 ).

This section has been consistently construed as not authorizing a contingent remainderman to maintain an action for waste against a life tenant because it could not be told then whether he would suffer any injury. Louisville Cooperage Co. v. Rudd, 276 Ky. 721 , 124 S.W.2d 1063, 1938 Ky. LEXIS 562 ( Ky. 1938 ).

Waste is an act done by a tenant without license or authority whereby a lasting damage is done to the freehold. Calvert v. Rice, 11 Ky. L. Rptr. 1001 , 12 Ky. L. Rptr. 252 .

2.Application.

An action at law for permissive waste will not lie under this section. Smith v. Mattingly, 96 Ky. 228 , 28 S.W. 503, 16 Ky. L. Rptr. 418 , 1894 Ky. LEXIS 118 ( Ky. 1894 ).

This section and KRS 381.400 both apply only to voluntary waste, and not to permissive waste. Smith v. Mattingly, 96 Ky. 228 , 28 S.W. 503, 16 Ky. L. Rptr. 418 , 1894 Ky. LEXIS 118 ( Ky. 1894 ).

This section applies only when there is voluntary waste, leaving permissive waste to be dealt with in equity. Continental Fuel Co. v. Haden, 182 Ky. 8 , 206 S.W. 8, 1918 Ky. LEXIS 308 ( Ky. 1918 ).

Law on subject of waste relates only to voluntary waste. Collins v. Security Trust Co., 206 Ky. 30 , 266 S.W. 910, 1924 Ky. LEXIS 277 ( Ky. 1924 ).

3.Oral Consent.

Oral consent of landlord does not protect a tenant from an action for waste. Abel v. Wuesten, 143 Ky. 513 , 136 S.W. 867, 1911 Ky. LEXIS 417 ( Ky. 1911 ).

Under this section the oral consent of the remainderman would not release the life tenant from damages for waste. Adams v. Adams, 371 S.W.2d 637, 1963 Ky. LEXIS 108 ( Ky. 1963 ).

4.Taking Timber, Coal or Minerals.

Life tenants may not take and appropriate timber, coal, or other minerals except for the upkeep of the property or for household purposes, unless the instrument creating the life estate expressly permits the commercial use thereof, or permission can be inferred from the fact that the creator of the life estate appropriated the premises to that use. Smith v. Harris, 276 Ky. 529 , 124 S.W.2d 786, 1939 Ky. LEXIS 555 ( Ky. 1939 ).

The law is well settled that a life tenant may not cut timber except such as might be needed for maintaining the improvements or required for domestic purposes. Adams v. Adams, 371 S.W.2d 637, 1963 Ky. LEXIS 108 ( Ky. 1963 ).

5.Alteration of Buildings.

Alterations tenant made were so radical they substantially changed character of building, and constituted waste. Abel v. Wuesten, 143 Ky. 513 , 136 S.W. 867, 1911 Ky. LEXIS 417 ( Ky. 1911 ).

6.Forfeiture of Lease.

Where tenant for years took coal from mine in such a way as to render mine useless, if continued, this constituted waste, and landlord could cancel lease. Mullins v. Dees, 124 S.W. 828, 1910 Ky. LEXIS 672 ( Ky. 1910 ).

As tenant is liable to an action of waste, the lease may be forfeited on ground of waste. Abel v. Wuesten, 143 Ky. 513 , 136 S.W. 867, 1911 Ky. LEXIS 417 ( Ky. 1911 ).

Nothing short of such voluntary waste as a wanton or destructive act committed against the leasehold could be equitable ground for cancellation or forfeiture of a lease. Addison v. Brandenburg, 202 Ky. 580 , 260 S.W. 381, 1924 Ky. LEXIS 767 ( Ky. 1924 ).

Waste, which was chiefly such as grew out of nonuse of a mine, was not ground for forfeiture of a lease. Addison v. Brandenburg, 202 Ky. 580 , 260 S.W. 381, 1924 Ky. LEXIS 767 ( Ky. 1924 ).

7.Tenant’s Liability for Injury by Others.

Tenant in dower is responsible to reversioner for injury to property done by other persons, and they are responsible to tenant. Cumberland Tel. & Tel. Co. v. Foster, 117 Ky. 389 , 78 S.W. 150, 25 Ky. L. Rptr. 1465 , 1904 Ky. LEXIS 193 ( Ky. 1904 ).

8.Liability of Assignee.

Remote assignee assuming coal leases was not liable to lessor for waste by unworkmanlike mining by original lessee and assignees prior to present defendant. Martin's Fork Coal Co. v. Harlan-Wallins Coal Corp., 14 F. Supp. 902, 1934 U.S. Dist. LEXIS 1051 (D. Ky. 1934 ), aff'd, 83 F.2d 967, 1936 U.S. App. LEXIS 2691 (6th Cir. Ky. 1936 ).

9.Jurisdiction.

Upon proper allegations the circuit court had jurisdiction to determine who was the owner of land devised for life and upon proper proof it had jurisdiction to determine that the land was the thing wasted and that the life tenant’s interest therein had thereby terminated. Amos v. Massey, 140 Ky. 54 , 130 S.W. 950, 1910 Ky. LEXIS 172 ( Ky. 1910 ).

10.Treble Damages.

Treble damages done by voluntary or wanton waste by a tenant may be recovered by the person entitled in an action at law. Smith v. Mattingly, 96 Ky. 228 , 28 S.W. 503, 16 Ky. L. Rptr. 418 , 1894 Ky. LEXIS 118 ( Ky. 1894 ).

Research References and Practice Aids

Kentucky Law Journal.

Comments, Meridith v. Ingram: A Failure to Shed the Shackles of Stare Decisis, 62 Ky. L.J. 856 (1973-1974).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Remainderman for Treble Damages and Injunction, Form 311.02.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint in an Action for Waste, Form 311.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Waste, § 311.00.

381.360. Remainderman or reversioner may bring action for waste.

The action for waste may be maintained by one who has the remainder or reversion in fee simple after an intervening estate for life or years, and also by one who has a remainder or reversion for life or years only, and each of them shall recover such damages as he has suffered by the waste complained of.

History. 2329.

NOTES TO DECISIONS

1.Application.

This section applies to voluntary waste only and does not apply to permissive waste. Smith v. Mattingly, 96 Ky. 228 , 28 S.W. 503, 16 Ky. L. Rptr. 418 , 1894 Ky. LEXIS 118 ( Ky. 1894 ). See Taylor v. Harvey, 100 S.W. 258, 30 Ky. L. Rptr. 1045 (1907); Fisher's Ex'r v. Haney, 180 Ky. 257 , 202 S.W. 495, 1918 Ky. LEXIS 40 ( Ky. 1918 ); Continental Fuel Co. v. Haden, 182 Ky. 8 , 206 S.W. 8, 1918 Ky. LEXIS 308 ( Ky. 1918 ); Collins v. Security Trust Co., 206 Ky. 30 , 266 S.W. 910, 1924 Ky. LEXIS 277 ( Ky. 1924 ).

KRS 381.350 and this section do not apply to contingent remainderman. Taylor v. Harvey, 100 S.W. 258, 30 Ky. L. Rptr. 1045 (1907). See Louisville Cooperage Co. v. Rudd, 276 Ky. 721 , 124 S.W.2d 1063, 1938 Ky. LEXIS 562 ( Ky. 1938 ).

2.Necessity of Suit.

Suit for possession was properly brought within 15 years after death of life tenant by vested remaindermen and although they could have previously brought a suit quia timet to quiet their title, a suit for waste or to enjoin sinking of oil wells they were not required to do so. Superior Oil Corp. v. Alcorn, 242 Ky. 814 , 47 S.W.2d 973, 1930 Ky. LEXIS 855 ( Ky. 1930 ).

3.Restraint of Waste.

Under KRS 381.350 and this section remaindermen have the right to maintain an action to restrain waste and for damages if depredations complained of are such as to amount to unauthorized waste to their remainder estate. Smith v. Harris, 276 Ky. 529 , 124 S.W.2d 786, 1939 Ky. LEXIS 555 ( Ky. 1939 ).

4.Statute of Limitations.

Under KRS 381.350 and this section the five-year statute of limitations starts to run from the time voluntary waste is committed. Fisher's Ex'r v. Haney, 180 Ky. 257 , 202 S.W. 495, 1918 Ky. LEXIS 40 ( Ky. 1918 ). See Adams v. Bates, 191 Ky. 710 , 231 S.W. 238, 1921 Ky. LEXIS 376 ( Ky. 1921 ).

Under KRS 381.350 and this section the statute of limitations starts to run from the time voluntary waste is committed or its commission is so threatened as to give reasonable grounds it will presently be committed. Salyer's Guardian v. Keeton, 214 Ky. 643 , 283 S.W. 1015, 1926 Ky. LEXIS 397 ( Ky. 1926 ).

5.Estoppel.

Vested remainderman was not estopped to prevent waste by life tenant by her silence while tenant prepared to commit waste, as tenant had constructive notice from records of remainderman’s claim. Salyer's Guardian v. Keeton, 214 Ky. 643 , 283 S.W. 1015, 1926 Ky. LEXIS 397 ( Ky. 1926 ).

6.Contingent Remaindermen.

A contingent remainderman is not authorized by law to resist recovery for lumber cut from land and sold by life tenant, nor to maintain action against life tenant for waste. Taylor v. Harvey, 100 S.W. 258, 30 Ky. L. Rptr. 1045 (1907).

This and allied sections have been consistently construed as not authorizing a contingent remainderman to maintain an action for waste against a life tenant, because it could not be told then whether he would suffer any injury. Louisville Cooperage Co. v. Rudd, 276 Ky. 721 , 124 S.W.2d 1063, 1938 Ky. LEXIS 562 ( Ky. 1938 ). See Fisher's Ex'r v. Haney, 180 Ky. 257 , 202 S.W. 495, 1918 Ky. LEXIS 40 ( Ky. 1918 ).

A contingent remainderman may bring an action at law against a stranger for waste committed before the termination of the life estate, and the trial court may use its powers as a court until the contingent remainder vests, and then apportion the fund between the parties entitled thereto, but the life tenant and other contingent remaindermen should be made parties to the action. Louisville Cooperage Co. v. Rudd, 276 Ky. 721 , 124 S.W.2d 1063, 1938 Ky. LEXIS 562 ( Ky. 1938 ). See Fisher's Ex'r v. Haney, 180 Ky. 257 , 202 S.W. 495, 1918 Ky. LEXIS 40 ( Ky. 1918 ).

The right of a contingent remainderman to maintain such action against a third person must exist outside the law. Louisville Cooperage Co. v. Rudd, 276 Ky. 721 , 124 S.W.2d 1063, 1938 Ky. LEXIS 562 ( Ky. 1938 ). See Fisher's Ex'r v. Haney, 180 Ky. 257 , 202 S.W. 495, 1918 Ky. LEXIS 40 ( Ky. 1918 ).

7.Permissive Waste.

A remainderman or reversioner cannot maintain an ordinary action in the nature of trespass on the case against a life tenant to recover damages for permissive waste; his remedy is by suit in equity. Smith v. Mattingly, 96 Ky. 228 , 28 S.W. 503, 16 Ky. L. Rptr. 418 , 1894 Ky. LEXIS 118 ( Ky. 1894 ).

Plaintiffs, in an action at law to recover for voluntary waste, having averred acts of permissive waste by defendants, were entitled to a transfer to equity of their cause. Smith v. Mattingly, 96 Ky. 228 , 28 S.W. 503, 16 Ky. L. Rptr. 418 , 1894 Ky. LEXIS 118 ( Ky. 1894 ).

Where plaintiffs owned the remainder in certain lands as joint tenants, they were properly joined as plaintiffs in a suit for permissive waste against the life tenant’s administrator for waste. Prescott v. Grimes, 143 Ky. 191 , 136 S.W. 206, 1911 Ky. LEXIS 374 ( Ky. 191 1).

An action for permissive waste, the failure to take reasonable care of the premises, will lie after the life tenant’s death by the heirs and next of kin as remaindermen, although during the continuance of the life estate such heirs occupied the position of contingent remaindermen and the statute of limitations started to run at life tenant’s death. Fisher's Ex'r v. Haney, 180 Ky. 257 , 202 S.W. 495, 1918 Ky. LEXIS 40 ( Ky. 1918 ).

A petition against personal representative of tenant per autre vie in equity for permissive waste seeking damages or in alternative that land and improvements be restored was not premature since it accrued before the life estate expired and it was error to sustain demurrer on ground that action was premature. Collins v. Security Trust Co., 206 Ky. 30 , 266 S.W. 910, 1924 Ky. LEXIS 277 ( Ky. 1924 ).

Tenant’s heirs and devisees of the tenant per autre vie are not necessary parties to a suit in equity for damages for permissive waste against the tenant’s personal representative. Collins v. Security Trust Co., 206 Ky. 30 , 266 S.W. 910, 1924 Ky. LEXIS 277 ( Ky. 1924 ).

While limitation for permissive waste does not run against the remainderman, during the life of the life tenant, the person who holds under the life tenant may not commit waste and if he commits waste an action may be brought by the remainderman against him. Burns v. Dillon, 226 Ky. 82 , 9 S.W.2d 1095, 1928 Ky. LEXIS 12 ( Ky. 1928 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Remainderman for Treble Damages and Injunction, Form 311.02.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint in an Action for Waste, Form 311.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Waste, § 311.00.

381.370. Action by heir for waste done in ancestor’s lifetime.

An heir may bring and maintain an action for waste done in the lifetime of his ancestor, as well as in his own lifetime.

History. 2330.

NOTES TO DECISIONS

1.Statute of Limitations.

If the cutting of timber complained of as waste occurred more than five years before institution of action, the statute of limitations will bar a recovery. Adams v. Bates, 191 Ky. 710 , 231 S.W. 238, 1921 Ky. LEXIS 376 ( Ky. 1921 ).

Research References and Practice Aids

Cross-References.

Guardian and his sureties liable to ward for waste of estate, KRS 387.080 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Waste, § 311.00.

381.380. Waste by seller before delivery of possession.

If a vendor or tenant of land commits any waste thereon, after he has sold his interest in it, but while he remains in possession, he shall be liable to the party injured for damages.

History. 2331.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Waste, § 311.00.

381.390. Waste by joint tenant.

If a tenant in common, joint tenant or parcener commits waste, he shall be liable to his cotenants jointly or severally for damages.

History. 2332.

NOTES TO DECISIONS

1.Cutting and Sale of Timber.

Where tenant in common cuts and removes timber, his cotenant may either claim the property in hands of purchaser or hold him for conversion. Nevels v. Kentucky Lumber Co., 108 Ky. 550 , 56 S.W. 969, 22 Ky. L. Rptr. 247 , 1900 Ky. LEXIS 72 ( Ky. 1900 ).

A tenant in common may not sell timber from land jointly owned with others, unless those others consent. Winchester v. Watson, 169 Ky. 213 , 183 S.W. 483, 1916 Ky. LEXIS 667 ( Ky. 1916 ).

Action by one (1) joint tenant to recover from the other his interest in timber taken and sold without his consent, was an action to recover for waste. Emmons v. Evans, 178 Ky. 180 , 198 S.W. 900, 1917 Ky. LEXIS 717 ( Ky. 1917 ).

Cited:

Louisville Cooperage Co. v. Rudd, 276 Ky. 721 , 124 S.W.2d 1063, 1938 Ky. LEXIS 562 , 144 A.L.R. 763 ( Ky. 1938 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Waste, § 311.00.

381.400. Damages when waste wantonly committed.

If, in any action for waste, the jury finds that the waste was wantonly committed, judgment shall be entered for three (3) times the amount of the damages assessed.

History. 2334.

NOTES TO DECISIONS

1.Construction.

An action at law for permissive waste will not lie under this section. Smith v. Mattingly, 96 Ky. 228 , 28 S.W. 503, 16 Ky. L. Rptr. 418 , 1894 Ky. LEXIS 118 ( Ky. 1894 ).

Law on subject of waste relates only to voluntary waste. Collins v. Security Trust Co., 206 Ky. 30 , 266 S.W. 910, 1924 Ky. LEXIS 277 ( Ky. 1924 ).

2.Application.

KRS 381.350 and this section both apply only to voluntary waste, and not to permissive waste. Smith v. Mattingly, 96 Ky. 228 , 28 S.W. 503, 16 Ky. L. Rptr. 418 , 1894 Ky. LEXIS 118 ( Ky. 1894 ).

3.Treble Damages.

Treble damages done by voluntary or wanton waste by a tenant may be recovered by the person entitled in an action at law. Smith v. Mattingly, 96 Ky. 228 , 28 S.W. 503, 16 Ky. L. Rptr. 418 , 1894 Ky. LEXIS 118 ( Ky. 1894 ).

Research References and Practice Aids

Kentucky Law Journal.

Comments, Meridith v. Ingram: A Failure to Shed the Shackles of Stare Decisis, 62 Ky. L.J. 856 (1973-1974).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint in an Action for Waste, Form 311.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Waste, § 311.00.

381.410. Action against representative of tenant — Revivor.

An action for waste may be brought against the representatives of a tenant, or if instituted in the lifetime of a tenant may be revived against his representative after his death.

History. 2335.

NOTES TO DECISIONS

1.Parties.

The heirs and devisees of a tenant holding for the life of another are not necessary parties to an action for damages for permissive waste against his personal representative as KRS 395.340 provides that such estates go to the personal representative as assets in his hands to be applied and distributed as personal property. Collins v. Security Trust Co., 206 Ky. 30 , 266 S.W. 910, 1924 Ky. LEXIS 277 ( Ky. 1924 ).

2.Evidence.

Looking at the manner in which the life tenant neglected the property of 450 acres and the improvements thereon as exhibited in the evidence of the witnesses who had opportunity to know its condition when he took it and at his death, the finding of the lower court, in an action by the remaindermen, for damages of $4,500 for waste was substantially correct. Fisher's Ex'r v. Haney, 180 Ky. 257 , 202 S.W. 495, 1918 Ky. LEXIS 40 ( Ky. 1918 ).

381.420. Waste committed while action pending — Receiver — Injunction.

If the tenant or person in possession of any land commits or is about to commit any waste thereon, pending an action to recover or charge such land, the court in which the action is pending may order a receiver to take possession of the land, or may stay the committing of waste by injunction or restraining order.

History. 2336.

NOTES TO DECISIONS

1.Receiver.

A receiver for real estate will be appointed by the chancellor in an action involving title, or where there is an attempt to enforce a lien for debt, and the one in possession claiming title is committing waste and is insolvent, or else the person seeking to enforce lien is entitled to rents and party in possession is insolvent and the property insufficient to satisfy lien. Walker v. Hibbard, 185 Ky. 795 , 215 S.W. 800, 1919 Ky. LEXIS 379 ( Ky. 1919 ).

2.Injunction.

A court of chancery will restrain equitable or permissive waste only when it is shown that the particular tenant has been guilty of wanton and unconscientious abuse of his rights, ruinous to the interests of other parties. Continental Fuel Co. v. Haden, 182 Ky. 8 , 206 S.W. 8, 1918 Ky. LEXIS 308 ( Ky. 1918 ).

Homestead statutes do not create an estate in land but only give to the owner of the homestead the right to use, occupy and enjoy it as a home free from disturbance by the heirs, creditors or others and although a widow could have prevented lessees under a lease executed by her husband’s adult children from entering upon the land and interfering with her use of the surface she could not enjoin them, in an action brought after oil was discovered in paying quantities at great expense to lessees, from operating the oil and gas wells where she permitted them to enter, explore for gas and oil and they paid her damages for her right of use and occupancy of the homestead and the injunctive relief would be of small benefit to her and would operate to the great injury of lessees. Brandenburg v. Petroleum Exploration, 218 Ky. 557 , 291 S.W. 757, 1927 Ky. LEXIS 190 ( Ky. 1927 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Remainderman for Treble Damages and Injunction, Form 311.02.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint in an Action for Waste, Form 311.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Waste, § 311.00.

381.430. Possession of minerals and other interests in land — Effect on possession of surface.

Wherever the mineral or other interests in or rights appurtenant to land in this state have passed, or shall hereafter pass, in any way, from a claimant in possession of the surface of the land, the continuity of the possession of such mineral, interests and rights shall not be deemed thereby to have been broken; but the possession of the surface by the original claimant thereof, from whom such mineral, interests or rights passed, or by those claiming through or under him, or by virtue of a judgment against him in an action to which the holder of the mineral, interests or rights is not a party, shall be deemed to be for the benefit of the person, his heirs and assigns, to whom the mineral, interests or rights have passed.

History. 2366a-1.

NOTES TO DECISIONS

1.Construction.

This section makes no change in character of estate of owners of a mining lease, it merely protects them; a leasehold remained personalty. United Mining Co. v. Morton, 174 Ky. 366 , 192 S.W. 79, 1917 Ky. LEXIS 190 ( Ky. 1917 ).

2.Application.

This section has reference only to mineral rights which are natural formations, and has nothing to do with artificial, subterranean easements such as pipes for conducting water or gas or other like purposes. George T. Stagg Co. v. Frankfort Modes Glass Works, 175 Ky. 330 , 194 S.W. 333, 1917 Ky. LEXIS 320 ( Ky. 1917 ).

This section is applicable only as between the owner of the surface and the owner of the minerals, or those claiming under them, and does not apply where adverse parties both claim the minerals without any question of possession of the surface. Card Creek Coal Co. v. Cline, 305 Ky. 473 , 204 S.W.2d 571, 1947 Ky. LEXIS 831 ( Ky. 1947 ).

This section applies only to the grantor of the mineral rights or those claiming through or under him and does not apply to an easement for a pipeline. Columbia Gas Transmission Corp. v. Consol of Kentucky, Inc., 15 S.W.3d 727, 2000 Ky. LEXIS 7 ( Ky. 2000 ), modified, 2000 Ky. LEXIS 62 (Ky. May 18, 2000).

3.Minerals Include Oil and Gas.

Kentucky follows the general rule that a conveyance or reservation of minerals includes oil and gas. Lovelace v. Southwestern Petroleum Co., 267 F. 513, 1920 U.S. App. LEXIS 2196 (6th Cir. Ky. 1920 ).

The term “minerals” according to the popular sense includes petroleum oils and gas. Lovelace v. Southwestern Petroleum Co., 267 F. 513, 1920 U.S. App. LEXIS 2196 (6th Cir. Ky. 1920 ). See Sellars v. Ohio Valley Trust Co., 248 S.W.2d 897, 1952 Ky. LEXIS 764 ( Ky. 1952 ).

By the phrase “excepting the mineral” in her deed, grantor retained title to all such elements, including the oil and gas. Slone v. Kentucky West Virginia Gas Co., 289 Ky. 623 , 159 S.W.2d 993, 1942 Ky. LEXIS 611 ( Ky. 1942 ), overruled in part, Townsend v. Cable, 378 S.W.2d 806, 1964 Ky. LEXIS 211 ( Ky. 1964 ).

A conveyance of coal and mineral includes oil and gas and this is true of deeds executed prior to 1919 as well as subsequent to 1919. Kentucky-West Virginia Gas Co. v. Browning, 521 S.W.2d 516, 1975 Ky. LEXIS 158 ( Ky. 1975 ).

4.Trustee for Owner of Minerals.

It is thoroughly established in this state that the one in possession of surface under a separated title thereto holds possession of the minerals as trustee for legal owner of same and it was not necessary to allege eviction to sue on warranty under this rule. Foxwell v. Justice, 191 Ky. 749 , 231 S.W. 509, 1921 Ky. LEXIS 387 ( Ky. 1921 ). See Farnsworth v. Barret, 146 Ky. 556 , 142 S.W. 1049, 1912 Ky. LEXIS 104 ( Ky. 1912 ).

A general warranty deed without reservation or exception, made to surface after separation of mineral estate, does not give vender possession of mineral estate save as trustee for owner. McPherson v. Thompson, 203 Ky. 35 , 261 S.W. 853, 1924 Ky. LEXIS 846 ( Ky. 1924 ).

At common law and by law, possession of surface does not give possession of mineral rights which have been sold and separated from surface estate, but presumption prevails that holder is trustee of minerals for use and benefit of owner. McPherson v. Thompson, 203 Ky. 35 , 261 S.W. 853, 1924 Ky. LEXIS 846 ( Ky. 1924 ).

Knowledge of deeds of record constituting chain of title is presumed and although deed to owner of the surface did not except caves and right of way the owner of the surface was trustee in possession for benefit of the owner of caves and right of way where the deed to surface owner’s predecessor in title excepted the caves and reserved the right of way to grantor. Cox v. Colossal Cavern Co., 210 Ky. 612 , 276 S.W. 540, 1925 Ky. LEXIS 738 ( Ky. 1925 ).

Where plaintiff landowners took title of property with knowledge of specific reservation of mineral rights to mine coal below surface by original owner and only mined the property themselves for domestic use, they had no title to subsurface coal since they held possession of the minerals for the benefit of the original owner, his heirs and assigns. Brockman v. Jones, 610 S.W.2d 943, 1980 Ky. App. LEXIS 417 (Ky. Ct. App. 1980).

The owner of a surface estate is regarded as a trustee in possession of the mineral estate for the use and benefit of its true owner. East Kentucky Energy Corp. v. Niece, 774 S.W.2d 458, 1989 Ky. App. LEXIS 99 (Ky. Ct. App. 1989).

5.Conveyance of Mineral Rights.

Deed conveying one half (1/2) of coal and all other minerals, metals, or mineral substances on, in or under designated real estate included oil and gas. Lovelace v. Southwestern Petroleum Co., 267 F. 513, 1920 U.S. App. LEXIS 2196 (6th Cir. Ky. 1920 ).

A lease of minerals underlying land surface is a sale of a portion of the realty. Mills v. Mills, 275 Ky. 431 , 121 S.W.2d 962, 1938 Ky. LEXIS 450 ( Ky. 1938 ).

6.Lease of Minerals by Life Tenant.

Lease of minerals underlying land surface, by persons owning undivided fourth (1/4) of land in fee and life estate in other three fourths (3/4), was valid, but lessors were entitled only to one fourth (1/4) of royalties and income from remaining three fourths (3/4) of royalties, the corpus to be preserved for remaindermen. Mills v. Mills, 275 Ky. 431 , 121 S.W.2d 962, 1938 Ky. LEXIS 450 ( Ky. 1938 ).

7.Surface Owner’s Right to Free Gas.

A “free gas clause” in an oil and gas lease, allowing the lessor the right to sufficient gas for domestic use on the premises, is a covenant running with and attached to the surface of the land, and cannot be taken advantage of by the owner of the oil, gas and mineral rights. Warfield Natural Gas Co. v. Small, 282 Ky. 347 , 138 S.W.2d 488, 1940 Ky. LEXIS 169 ( Ky. 1940 ).

Lease executed by owner of oil, gas and mineral rights, without referring to a “free gas clause” in favor of the surface owner contained in an earlier lease, did not destroy surface owner’s right to free gas for domestic use on the premises. Warfield Natural Gas Co. v. Small, 282 Ky. 347 , 138 S.W.2d 488, 1940 Ky. LEXIS 169 ( Ky. 1940 ).

Under a “free gas clause” permitting lessor to use gas for domestic purposes, and authorizing the lessee to shut off the gas for failure to use reasonable economy, lessee had right by notifying lessor to shut off the gas in order to compel lessor to pay for any amount of gas used in excess of reasonable amount needed for domestic purposes, and lessor could enjoin lessee from interfering with his use of such a reasonable amount. Warfield Natural Gas Co. v. Small, 282 Ky. 347 , 138 S.W.2d 488, 1940 Ky. LEXIS 169 ( Ky. 1940 ).

Where oil and gas lease contained “free gas clause” in favor of surface owner, a later deed, conveying the surface but reserving to the grantor the oil, gas and mineral rights and those rights covered by the lease, did not destroy surface owner’s right to free gas for domestic use on the premises, since that right was a covenant running with the surface and could not be of any value to the owner of the oil, gas and mineral rights. Warfield Natural Gas Co. v. Small, 282 Ky. 347 , 138 S.W.2d 488, 1940 Ky. LEXIS 169 ( Ky. 1940 ).

Where original oil and gas lease, which allowed the lessor free gas for domestic use, did not provide for forfeiture of free gas, a forfeiture provision cannot be inserted later without consideration passing to the lessor or his successors. Warfield Natural Gas Co. v. Small, 282 Ky. 347 , 138 S.W.2d 488, 1940 Ky. LEXIS 169 ( Ky. 1940 ).

8.Possession.

Lessee under oil ease with provision for right to explore for ten years was entitled to possession of the premises for exploration purposes during the specified time. Beatty Oil & Gas Co. v. Blanton, 245 F. 979, 1917 U.S. Dist. LEXIS 1028 (D. Ky. 1917 ).

Where heirs of the grantors of coal and mineral rights never had actual possession of the mineral rights, such possession being held by the owner of the surface for the benefit of the owner of the mineral rights and when the heirs executed a lease of the mineral rights they did not surrender actual possession but only such right of possession as they then had, the rule which estops a tenant to deny the title of the landlord had no application. Kentucky-West Virginia Gas Co. v. Browning, 521 S.W.2d 516, 1975 Ky. LEXIS 158 ( Ky. 1975 ).

9.— Continuity.

Judgment against claimants of surface in suit to quiet title in federal district court broke continuity of their possession, and was conclusive as against purchaser from them. Tennis Coal Co. v. Sackett, 172 Ky. 729 , 190 S.W. 130, 1916 Ky. LEXIS 280 ( Ky. 1916 ).

If a vendor who has defective title to land properly conveys the mineral rights and continues in possession of the land, the continuity of such possession is not broken, but inures to benefit of grantee. J. B. Gathright Land Co. v. Begley, 200 Ky. 808 , 255 S.W. 837, 1923 Ky. LEXIS 202 ( Ky. 1923 ).

The actual possession by wife for over 15 years subsequent to execution of a deed to minerals underlying her land void for failure of her husband to join in the conveyance or to theretofore convey as required by KRS 404.020 did not inure to the benefit of vendee. J. B. Gathright Land Co. v. Begley, 200 Ky. 808 , 255 S.W. 837, 1923 Ky. LEXIS 202 ( Ky. 1923 ).

10.— Adverse.

One holding land cannot hold mineral rights therein by adverse possession, and limitations do not run against either the owner of surface or the owner of mineral rights. Farnsworth v. Barret, 146 Ky. 556 , 142 S.W. 1049, 1912 Ky. LEXIS 104 ( Ky. 1912 ).

If vendors in possession were in possession of the land when they sold the coal or minerals to the vendee and thereafter remained in possession until they had been in the adverse possession of the land for the statutory period counting from their first acquiring actual possession of the land, the title of vendee was valid, but if, before the statutory period had expired, they had abandoned the possession or been evicted by the owners of the paramount title, then the title of vendee failed. Tennis Coal Co. v. Sackett, 172 Ky. 729 , 190 S.W. 130, 1916 Ky. LEXIS 280 ( Ky. 1916 ).

The opening of a coal bank or oil and gas wells by the surface owner, for the purpose of taking a small quantity of minerals for domestic purposes and not with the avowed intention of acquiring title to the whole mineral estate, does not start limitations running against the owner of the minerals. Hoskins v. Northern Lee Oil & Gas Co., 194 Ky. 628 , 240 S.W. 377, 1922 Ky. LEXIS 226 ( Ky. 1922 ).

The statutes of limitations do not run in favor of the owner and holder of the surface against the fee owner of the mineral estate in the same land, and the only way the statute can be started running in favor of the surface holder as against the mineral, is by the former taking actual possession of the mineral under claim of right, by opening mines or wells and operating the same and when this possession has continued for the statutory period, title to the mineral by adverse possession is perfected. Hoskins v. Northern Lee Oil & Gas Co., 194 Ky. 628 , 240 S.W. 377, 1922 Ky. LEXIS 226 ( Ky. 1922 ).

To start limitations running against the owner of a mineral estate in land, the entry into possession of the mineral estate must be accompanied by such open, notorious, and adverse acts as would be sufficient to set the statutes running in favor of one in possession of the surface of the land. Hoskins v. Northern Lee Oil & Gas Co., 194 Ky. 628 , 240 S.W. 377, 1922 Ky. LEXIS 226 ( Ky. 1922 ).

Judgment quieting title interrupted all prior adverse holdings of the minerals under the land so as to deprive any subsequent adverse holder of the right to tack to his holding any such prior holding so as to complete the statutory period. Asher v. Gibson, 198 Ky. 285 , 248 S.W. 862, 1923 Ky. LEXIS 438 ( Ky. 1923 ).

The possession of grantees, under absolute deed without reservation of mineral rights from a grantor who received the property by deed reserving the mineral rights to his grantor, did not constitute adverse possession in the minerals. Asher v. Gibson, 198 Ky. 285 , 248 S.W. 862, 1923 Ky. LEXIS 438 ( Ky. 1923 ).

The rule that possession, such as the nature of the real estate will admit of and such as is necessary for the use it is applied to, is sufficient, applies to the adverse possession of minerals the same as to the possession of the surface. Asher v. Gibson, 198 Ky. 285 , 248 S.W. 862, 1923 Ky. LEXIS 438 ( Ky. 1923 ).

In order for surface owner to acquire title by adverse possession of minerals in place, separated from surface, he must not only open and work mines, but actual possession and work must be continuous, uninterrupted, open, and notorious for the statutory period. McPherson v. Thompson, 203 Ky. 35 , 261 S.W. 853, 1924 Ky. LEXIS 846 ( Ky. 1924 ).

After deed to mineral rights had been recorded it brought home to all the world and the defendants occupying surface, notice of the ownership by grantee of the minerals just as fully as if grantee had a notice of his ownership with a copy of the deed attached served upon each defendant occupying the surface by the sheriff and caused such copy to be read to them by him in the presence of witnesses. Piney Oil & Gas Co. v. Scott, 258 Ky. 51 , 79 S.W.2d 394, 1934 Ky. LEXIS 577 ( Ky. 1934 ).

After grantee recorded deed to mineral rights in proper office grantor retaining ownership of surface and all persons claiming under him became, were and remained trustees for grantee of minerals and those claiming under him and they could never no matter how long they held the surface disseise grantee and those claiming these minerals under him without openly disavowing or repudiating the trust and giving to the owner of mineral estate notice thereof. Piney Oil & Gas Co. v. Scott, 258 Ky. 51 , 79 S.W.2d 394, 1934 Ky. LEXIS 577 ( Ky. 1934 ).

Execution of oil and gas leases by owners of the surface and collection of rent under them would not be an adverse possession of the oil and gas where there had been a previous severance of the ownership of the minerals from the surface. Smith v. Graf, 259 Ky. 456 , 82 S.W.2d 461, 1935 Ky. LEXIS 323 ( Ky. 1935 ).

Where driller of oil and gas well held a lease from the owner of the minerals as well as a lease from the surface owner, the drilling of the well did not constitute adverse possession by surface owner. Smith v. Graf, 259 Ky. 456 , 82 S.W.2d 461, 1935 Ky. LEXIS 323 ( Ky. 1935 ).

Limitation does not run in favor of owner or holder of surface estate against owner of mineral estate merely because of ownership or possession of surface for any length of time. Curtis-Jordan Oil & Gas Co. v. Mullins, 269 Ky. 514 , 106 S.W.2d 979, 1936 Ky. LEXIS 780 ( Ky. 1936 ).

Owner of surface estate may acquire title by adverse possession of minerals separated from surface but to do so he must not only open and work mine, but actual possession and work must be uninterrupted, continuous, open, and notorious for statutory period. Curtis-Jordan Oil & Gas Co. v. Mullins, 269 Ky. 514 , 106 S.W.2d 979, 1936 Ky. LEXIS 780 ( Ky. 1936 ).

After severance of the mineral title one who acquires possession of the surface from the same grantor is deemed to hold possession of the minerals as trustee for the holder of the mineral title and, in the absence of an explicit disclaimer and clear repudiation of this existing relationship in a manner sufficiently open and notorious to bring home to the mineral owner knowledge or notice of the hostility of the surface holder’s possession, the surface holder, being a trustee in possession, can never acquire the title of his cestui que trust by any length of possession for his possession never becomes adverse. Kentucky River Coal Corp. v. Singleton, 36 F. Supp. 123, 1941 U.S. Dist. LEXIS 3845 (D. Ky. 1941 ).

Adverse possession of subsurface interests must be evidenced by notice or notorious action amounting to notice. Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

The surface owner must give the mineral owner formal notice that he is taking the minerals under an adverse claim in order to repudiate the trust and initiate limitations. Diederich v. Ware, 288 S.W.2d 643, 1956 Ky. LEXIS 270 ( Ky. 1956 ).

After a severance of the minerals from the surface, any adverse possession of the surface will be deemed to be a holding in trust for the mineral owner unless trust is openly repudiated by the adverse holder. Inland Steel Co. v. Isaacs, 291 S.W.2d 522, 1956 Ky. LEXIS 374 ( Ky. 1956 ).

In order for the surface owner to obtain title by adverse possession to the minerals which constitute a severed estate, he must have openly disavowed or repudiated the trust declared by the statute and have exercised dominion over the mineral estate and brought notice thereof to the owner of that estate. Ward v. Woods, 310 S.W.2d 63, 1958 Ky. LEXIS 375 ( Ky. 1958 ).

If the mineral estate was severed from the surface estate, adverse possession of the surface alone, no matter how long continued, would not create title to the minerals. Griffith v. J. C. Miller Oil Co., 349 S.W.2d 833, 1961 Ky. LEXIS 72 ( Ky. 1961 ).

Where plaintiff landowners took title to property with knowledge of reservation by original owner of mineral rights to subsurface coal and mined the property for domestic use only, there was not sufficient repudiation of possessory trust for benefit of owner imposed by this section to establish adverse possession entitling them to title to the coal rights. Brockman v. Jones, 610 S.W.2d 943, 1980 Ky. App. LEXIS 417 (Ky. Ct. App. 1980).

For surface estate owners to adversely possess the mineral estate, they must continuously and uninterruptedly hold the mine or seam for the statutory period and if they should cease operating or removing the minerals, the statute stops running. East Kentucky Energy Corp. v. Niece, 774 S.W.2d 458, 1989 Ky. App. LEXIS 99 (Ky. Ct. App. 1989).

Surface owner, holding severed mineral estate acquired from common grantor as trustee, can only acquire title by adverse possession by unequivocal repudiation of the trust, given in such a way as to unmistakably place mineral estate owner on notice. Great W. Land Mgmt. v. Slusher, 939 S.W.2d 865, 1996 Ky. LEXIS 71 ( Ky. 1996 ), modified, 1997 Ky. LEXIS 41 (Ky. Mar. 27, 1997).

11.Nonuser.

Where there is a severance of the mineral estate from the surface estate, the owner of the minerals does not lose his right or his possession by any length of nonuser, nor can the owner of the surface acquire title to the minerals by his exclusive and continued occupancy of the surface merely. Scott v. Laws, 185 Ky. 440 , 215 S.W. 81, 1919 Ky. LEXIS 316 ( Ky. 1919 ).

Owner of minerals does not lose rights as against owner of surface by mere nonuser, his title can only be defeated by acts which actually take mineral out of his possession. Piney Oil & Gas Co. v. Scott, 258 Ky. 51 , 79 S.W.2d 394, 1934 Ky. LEXIS 577 ( Ky. 1934 ).

Where there has been severance of mineral estate from surface estate, owner of mineral estate does not forfeit or lose his right or possession by any length of nonuser and owner of surface estate cannot acquire title to minerals thereunder by an exclusive and continued ownership or occupancy of surface merely. Curtis-Jordan Oil & Gas Co. v. Mullins, 269 Ky. 514 , 106 S.W.2d 979, 1936 Ky. LEXIS 780 ( Ky. 1936 ).

Cited:

Blackburn v. Pond Creek Coal & Land Co., 287 S.W.2d 610, 1956 Ky. LEXIS 474 ( Ky. 1956 ); Akers v. Baldwin, 736 S.W.2d 294, 1987 Ky. LEXIS 230 ( Ky. 1987 ); White Log Jellico Coal Co. v. Zipp, 32 S.W.3d 92, 2000 Ky. App. LEXIS 74 (Ky. Ct. App. 2000).

Research References and Practice Aids

Cross-References.

Closing of abandoned wells, KRS 353.150 , 353.180 .

Lien on mineral leaseholds, effect of change in title or possessory rights, KRS 376.140 .

Kentucky Law Journal.

Lee, Working Part of a Mineral Estate as Adverse Possession of the Whole, 46 Ky. L.J. 67 (1957).

Bowles, Adverse Possession of Subsurface Minerals, 71 Ky. L.J. 83 (1982-83).

Comment, Breaking the Trust: Adverse Possession of Subsurface Minerals under Kentucky Law, 71 Ky. L.J. 235 (1982-83).

Note: COWho? Kentucky’s Need to Statutorily Define Property Interests in Geologically Sequestered Carbon Dioxide, 98 Ky. L.J. 375 (2009/2010).

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

Stephens, Historical and Practical Comments on Abstracting Land and Mineral Titles in Kentucky, 9 N. Ky. L. Rev. 445 (1982).

Brady, “Expert Testimony in Kentucky”, see article for analysis of court standards regarding expert testimony, 25 N. Ky. L. Rev. 2 (1998).

381.440. Excavations in a city of the first class and consolidated local government — Protection of adjacent property.

Whenever the owner of a lot in a city of the first class or a consolidated local government proposes to excavate upon the lot to a depth greater than ten (10) feet below the top of the curbstone of the sidewalk adjoining the lot, he shall, at his own expense, protect any wall on adjoining land near the excavation from injury from such excavation, if the necessary license is afforded him to enter upon the adjoining land for that purpose, but not otherwise.

History. 3037a: amend Acts 2002, ch. 346, § 228, effective July 15, 2002.

Research References and Practice Aids

Cross-References.

Protection of property adjacent to coal mines, KRS 352.490 , 352.500 .

Kentucky Law Journal.

Edmonds, Some Aspects of Lateral Support in Kentucky, 39 Ky. L.J. 88 (1950).

381.445. Abutting property owner in cities of first class under responsibility to remedy defective sidewalks — Liability to persons or property arising out of failure to repair — Director of public works may cause repairs to be made, when — Liability of city. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 20) was declared unconstitutional in City of Louisville v. Klusmeyer (1959), 324 S.W.2d 831, and was repealed by Acts 1966, ch. 255, § 283.

381.450. Tenants may remove improvements from city lots, when.

Owners of particular estates of freehold in possession or in estates for years, in unimproved or unproductive lots in cities in which other persons are the owners of the reversion or remainder, may, within ninety (90) days after the interest or estate in such lots ceases, remove any improvements they have erected thereon.

History. 2366.

NOTES TO DECISIONS

1.Life Tenants.

Permanent improvements made by a life tenant, without the consent of the remainderman, cannot be removed or compensated for except under extraordinary circumstances. Adkins v. Hackworth, 279 Ky. 352 , 130 S.W.2d 774, 1939 Ky. LEXIS 277 ( Ky. 1939 ).

Where a life tenant in good faith, believing that he is the owner, makes permanent improvements that enhance the value of the land, he is entitled to be compensated to the extent of the enhanced vendible value of the land. Adkins v. Hackworth, 279 Ky. 352 , 130 S.W.2d 774, 1939 Ky. LEXIS 277 ( Ky. 1939 ).

2.Lessees.

A lesee is not entitled, upon the termination of the lease, to compensation for improvements made by him, in the absence of a provision therefor in the lease. Key v. Hays, 292 Ky. 423 , 166 S.W.2d 850, 1942 Ky. LEXIS 97 ( Ky. 1942 ).

Research References and Practice Aids

Cross-References.

Lienholder may remove property from leased premises, when, KRS 376.040 .

381.460. Occupant in good faith to be paid for improvements.

If any person, believing himself to be the owner by reason of a claim in law or equity founded on a public record, peacefully occupies and improves any land, and the land, upon judicial investigation, is held to belong to another, the value of the improvements shall be paid by the successful party to the occupant, or the person under whom and for whom he entered and holds, before the court rendering judgment or decree of eviction causes the possession to be delivered to the successful party.

History. 3728.

NOTES TO DECISIONS

1.Application.

This section applies only to one who claims to derive title from the Commonwealth. Wintersmtih v. Price, 66 S.W. 2, 23 Ky. L. Rptr. 2005 (1902).

“Public record” meant a patent from the Commonwealth. Fairbairn v. Means, 61 Ky. 323 , 1863 Ky. LEXIS 69 ( Ky. 1863 ).

2.Public Record.

The claimant must show that he believed himself to be the owner by reason of a claim founded upon a grant from the Commonwealth; in order to do so, he must necessarily connect himself with the grant by showing that he held the title which it granted. Shaw v. Robinson, 111 Ky. 715 , 64 S.W. 620, 23 Ky. L. Rptr. 998 , 1901 Ky. LEXIS 242 ( Ky. 1901 ).

“Public record” means a patent from the Commonwealth. Golden v. Blakeman, 223 Ky. 517 , 3 S.W.2d 1095, 1928 Ky. LEXIS 371 ( Ky. 1928 ), overruled, Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

The general rule is that a person basing his claim on a “public record” or “title of record” must trace his title back to a patent from the Commonwealth; in this case neither party is in position to question title of the other, since they both claim title from a common source. Hardin v. Robinson, 243 Ky. 648 , 49 S.W.2d 563, 1932 Ky. LEXIS 173 ( Ky. 1932 ).

3.Improvements.

Certain painting and partitions were held “permanent improvements” for which occupant was entitled to credit. Moore's Guardian v. Williamson's Ex'r, 201 Ky. 561 , 257 S.W. 711, 1923 Ky. LEXIS 340 ( Ky. 1923 ).

Expenses in renting property and for janitor service were not improvements and should not have been credited to occupant. Moore's Guardian v. Williamson's Ex'r, 201 Ky. 561 , 257 S.W. 711, 1923 Ky. LEXIS 340 ( Ky. 1923 ).

Award of $3,000 for improvements was not clearly erroneous. Rice v. Merritt, 310 S.W.2d 529, 1957 Ky. LEXIS 164 ( Ky. 1957 ).

Persons in possession of land under color or claim of title to mineral rights were entitled to lien against oil and gas rights for amount the well they drilled had increased value of the land but not to exceed the cost of drilling the well and connecting pipe. Belcher v. Elliott, 312 F.2d 245, 1962 U.S. App. LEXIS 3396 (6th Cir. Ky. 1962 ).

Where the parties built a dwelling on nonmarital property in which the husband owned a life estate and his daughter by a previous marriage owned the remainder, the value of the life estate in the improvements was marital property, as it resulted from the joint efforts of the parties; such value should be computed on the husband’s life expectancy at the time of the dissolution of the marriage. Walters v. Walters, 782 S.W.2d 607, 1989 Ky. LEXIS 95 ( Ky. 1989 ).

4.Claim Against True Owner.

If occupying claimant had a claim for amount by which her improvements had enhanced vendible value of property, it would be against the true owner and not against vendor she claims was without title. Ward v. Johnson, 272 Ky. 234 , 113 S.W.2d 1132, 1938 Ky. LEXIS 90 ( Ky. 1938 ).

5.Junior Lessee of Oil Land.

Notwithstanding this section, a defeated junior lessee of oil lands was not awarded compensation for drilling done after he forcibly took possession. Raydure v. Lindley, 268 F. 338, 1920 U.S. App. LEXIS 2314 (6th Cir. Ky. 1920 ).

6.Mortgages.

In cases where paper under which title was claimed is declared a mortgage, fairness required an accounting of rents and improvements upon the broad principle that neither party shall be enriched at the loss of the other, and that they be placed as nearly as possible in status quo. Walker v. Fields, 147 Ky. 380 , 144 S.W. 74, 1912 Ky. LEXIS 255 ( Ky. 1912 ). See Moore's Guardian v. Williamson's Ex'r, 201 Ky. 561 , 257 S.W. 711, 1923 Ky. LEXIS 340 ( Ky. 1923 ).

Where occupant was in possession under color of title held to be a mortgage fairness required an accounting of rents and improvements upon the broad principle that neither party should be enriched at the loss of the other and that they would be placed as nearly as possible in statu quo. The costs of improvements was not the measure of credit allowable to the occupant, but nevertheless might be considered in determining whether and to what extent the vendible value of the property had been increased. Moore's Guardian v. Williamson's Ex'r, 201 Ky. 561 , 257 S.W. 711, 1923 Ky. LEXIS 340 ( Ky. 1923 ).

In cases where paper under which title was claimed was declared a mortgage, fairness required an accounting of rents and improvements upon the broad principle that neither party should be enriched at the loss of the other, and that they should be placed as nearly as possible in status quo. Rogers v. Wiggs, 51 Ky. 504 , 1851 Ky. LEXIS 104 ( Ky. 1851 ).

7.Partition.

Defendants adjudged owners of over half of land involved in partition suit by judgment allotting them portion on which they placed improvements, without reference to value thereof, cannot complain of refusal to adjudge them lien therefor. Hardin v. Robinson, 243 Ky. 648 , 49 S.W.2d 563, 1932 Ky. LEXIS 173 ( Ky. 1932 ).

Research References and Practice Aids

Journal of Mineral Law & Policy.

Notes, The Good Faith Mineral Trespasser’s Reasonable Cost of Production, 4 J.M.L. & P. 321 (1988-89).

Kentucky Law Journal.

Stephens, Remedies of Good Faith Occupier Who Has Improved Land — In Kentucky, Statutory Remedy, 40 Ky. L.J. 344 (1952).

Oberst, The Supreme Court and States Rights, 48 Ky. L.J. 63 (1959).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Answer With Counterclaim for Improvements Under KRS 381.460 , Form 305.07.

Caldwell’s Kentucky Form Book, 5th Ed., Synopsis to Chapter 305 Ejectment, § 305.syn.

381.470. Proceedings to ascertain value of improvements.

At the request of either party, the court in which the judgment or decree of eviction is rendered shall impanel a jury of twelve (12) discreet and impartial freeholders, not kin to either party, to meet upon the premises recovered, on a day named in the summons.

History. 3729: amend. Acts 1976 (Ex. Sess.), ch. 14, § 303, effective January 2, 1978.

381.480. Oath of jurors.

The clerk of the court shall administer to the jurors, after they have been selected, the following oath: “Each of you do solemnly swear, that you will impartially, and to the best of your skill and judgment, discharge the duties required of you in the present case, by the provisions of the law concerning occupying claimants.”

History. 3730: amend. Acts 1976 (Ex. Sess.), ch. 14, § 304, effective January 2, 1978.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Oath to Jurors Where Occupying Claimants, Form 11.11.

381.490. Inquest — Proceedings — Duty of court.

The court shall swear the witnesses, preside over the inquest and trial, decide all matters of law, preserve order, and may adjourn from day to day until the jury has completed the inquest. In case the jury first summoned fails to attend, or, after being sworn, fails to agree and render their verdict, the court shall summon another jury, on a day to be named in his mandate in writing. The court shall make out and return to the clerk’s office from which the writ issued, a complete record of the proceedings before him, together with the original writ, the verdict, and assessment of the jury, certified by him. Either party shall have the right of challenge to the jurors allowed in civil cases, and any deficiency in the jury may be supplied by summoning others.

History. 3731: amend. Acts 1976 (Ex. Sess.), ch. 14, § 305, effective January 2, 1978.

Research References and Practice Aids

Cross-References.

Selection of jury, challenges, KRS 29.270 , 29.290 .

381.500. Assessment of damages.

After the jury has been sworn, it shall, from an examination of the premises, and upon such legal evidence as either party may produce, assess:

  1. The damages, if any, which may have been done the land by cultivation and unnecessary waste of timber after the suit was instituted;
  2. The rents and profits which have accrued after final judgment or decree of eviction; and
  3. The value of the improvements upon the land from which the occupant is to be evicted, to be estimated as of the time the jury is impaneled. The inquest and verdict shall be signed by the jurors.

History. 3732.

381.510. Inquest may be quashed and new writ awarded.

The court to whom the inquest is returned may, upon the motion of either party, for good cause, quash the inquest, and award a new writ as often as it is deemed necessary to the ends of justice.

History. 3733.

381.520. Witnesses — How summoned.

The clerk issuing the writ, or the justice summoned to preside, shall issue summons for the witnesses, whose attendance shall be coerced by the justice as in other cases.

History. 3734.

Research References and Practice Aids

Cross-References.

Production of witnesses, KRS 421.110 to 421.180 .

381.530. Copies of inquest — Fees of sheriff.

The clerk shall make out two (2) copies of the inquest, and deliver one (1) to each party on request. The party demanding the inquest shall pay to the sheriff, for his services, four dollars ($4), which shall be taxed in the bill of costs against the adverse party, if the court gives judgment for any amount against him.

History. 3735: amend. Acts 1976 (Ex. Sess.), ch. 14, § 306, effective January 2, 1978.

381.540. Trial on return of inquest — Rents.

The inquest, when returned, shall be docketed as other causes. The court shall, after deducting the lesser from the greater assessments, give judgment for the remainder in favor of the occupant or successful claimant. The rent, from the day of the inquest until the time fixed for issuing the writ of possession, shall be computed by the court at the same rate per year as that fixed by the jury for the previous years.

History. 3736: amend. Acts 1976 (Ex. Sess.), ch. 14, § 307, effective January 2, 1978.

381.550. Lien of occupant.

The occupant shall have a lien upon the land recovered from him to satisfy the judgment, and may enforce it by suit in equity, order of court, or other procedure.

History. 3737.

381.560. Judgment for lien satisfied if all land taken.

Satisfaction of a judgment in favor of an occupant for improvement must be sought by the enforcement of the lien given in KRS 381.550 , and if, in the enforcement thereof, all the land recovered by the successful claimant is taken, the judgment shall be deemed to be satisfied.

History. 3738.

381.570. Growing crop.

The occupant shall be entitled to the crop growing on the land at the time of judgment of eviction and order for possession. If any part of the land, at the time of eviction, has no crop growing upon it, the court may order the possession of such part to be delivered at any time.

History. 3739.

Research References and Practice Aids

Cross-References.

Emblements on land of deceased, KRS 395.350 .

Growing crops, effect on execution or sale, KRS 426.170 .

381.580. Purposes for which private passway may be established — Commissioners to make report. [Repealed.]

Compiler’s Notes.

This section (3779a-1: amend. Acts 1948, ch. 148, § 1) was repealed by Acts 1976, ch. 140, § 129.

381.590. Orders to owners. [Repealed.]

Compiler’s Notes.

This section (3779a-2) was repealed by Acts 1976, ch. 140, § 129.

381.600. Examination and confirmation of report. [Repealed.]

Compiler’s Notes.

This section (3779a-3: amend. Acts 1952, ch. 84, § 69, effective July 1, 1953) was repealed by Acts 1976, ch. 140, § 129.

381.610. Exceptions to be tried by jury — Damages — Cost. [Repealed.]

Compiler’s Notes.

This section (895, 3779a-4) was repealed by Acts 1976, ch. 140, § 129.

381.620. Appeals. [Repealed.]

Compiler’s Notes.

This section (3779a-4, 3779a-5) was repealed by Acts 1976, ch. 140, § 129.

381.630. Use of passage not exclusive — Payment for joint use. [Repealed.]

Compiler’s Notes.

This section (3779a-6:) was repealed by Acts 1976, ch. 140, § 129.

381.635. Right of condemnation of underground passageway to mine.

Whenever it is necessary for the owner of land to have access over, under or through the land of one or more other persons, for the purpose of operating a coal mine or other mine, and marketing the products therefrom, and access over the surface of the land of such other persons, for the purpose, would be impracticable, but there exist shafts, slopes, passageways or entries below the surface of the land of such other persons, suitable for the purpose and which could be used for the purpose without undue or unreasonable inconvenience to the owner thereof, or there exist coal seams or other strata below the surface of the land of such other persons, through which shafts, slopes, passageways or entries may be made without unreasonable inconvenience to the owner thereof, the right to use, or to make and use, such shafts, slopes, passageways or entries may be condemned under the procedure set forth in the Eminent Domain Act of Kentucky, subject to the exceptions prescribed in KRS 381.636 . The right of use so condemned shall include the right to install tracks, power lines, lights, ventilating equipment, and other things necessary for satisfactory use. And provided further that in any case where the rights or uses herein provided for are sought to be condemned through any land already devoted to mining purposes, if such proposed rights or uses in any wise interfere with or disrupt any approved mining methods, plans or practices, as established or projected as a part of a general plan of mining to conform to or comply with any safety provisions, rules or regulations under the existing mining laws of the state of Kentucky or of the United States of America as now in effect or hereafter enacted, such rights or uses shall be conclusively presumed to be undue and unreasonable inconvenience to the owner within the meaning of this section and KRS 381.636 .

History. Enact. Acts 1948, ch. 5, § 1; 1976 (Ex. Sess.), ch. 14, § 308, effective January 2, 1978.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

381.636. Findings required by commissioners in condemnation of underground passageway — Basis of compensation — Immediate possession.

All of the provisions of the Eminent Domain Act of Kentucky shall be applicable for the purposes of KRS 381.635 and this section, except as follows:

  1. The commissioners shall be required to find, in addition to their other findings, that access over the surface of the land would be impracticable, and that the use or making and use of the shafts, slopes, passageways or entries would not cause undue or unreasonable inconvenience to the owner thereof.
  2. Compensation shall be determined in accordance with what will constitute just compensation to the owner of the shafts, slopes, passageways or entries for the use thereof, and not on the basis of an actual taking of the land. Where the right to make a shaft, slope, passageway or entry is condemned, the condemnor shall be required to pay compensation for the value of any merchantable coal or other mineral that may be removed from the land in making the shaft, slope, passageway or entry, and for any incidental damages arising therefrom.
  3. At the time of examining the report of the commissioners, the court shall enter an order granting the applicant the immediate use of the right of access sought to be condemned, notwithstanding the filing of exceptions by the owners, if:
    1. The report of the commissioners favors condemnation; and
    2. The person seeking condemnation has paid into court the amount of compensation fixed by the commissioners, and has filed with the court a bond, with sureties approved by the court, conditioned upon his paying to the owner or owners the difference between the sum paid into court and that which may thereafter be finally determined, in the proceeding, to be the value of the right of access, and further conditioned that, if it is finally determined in the proceeding that the person is not entitled to condemn the right of access, he will pay to the owner or owners damages for his use pending such final determination.

History. Enact. Acts 1948, ch. 5, § 2; 1976 (Ex. Sess.), ch. 14, § 309, effective January 2, 1978.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

381.640. Joint owners of private passway to share costs.

  1. Where two (2) or more persons in this state have acquired real estate, not exceeding twenty (20) feet in width, sufficient for a passway to benefit their lands along side of, or near the proposed passway, the owners of such passways who are benefited thereby shall pay all the costs expended for the passway or the opening of and fixing the passway for travel.
  2. The owners of such passways shall bear jointly all the necessary expense of repairs, reconstruction and maintenance, including the necessary fencing thereof, and shall cause the necessary work to be done.

History. 3779b-1, 3779b-2.

Research References and Practice Aids

Cross-References.

Division fences, KRS 256.020 .

381.650. Enforcement of payment of joint expenses.

The collection of indebtedness for liability imposed by KRS 381.640 may be enforced by a proceeding in a court of equity; and the lands benefited by those who own such passways will be subjected to a lien for the due portion of such expense that may be necessarily incurred. Enough of the property of any delinquent owner may be sold by a proceeding in equity to pay his portion of such assessment.

History. 3779b-2.

381.660. Condemnation for underground water pipes.

When the owner or lessee of a salt, or other well or spring, or stream or body of water, desires to convey the water therefrom to a point more convenient by means of pipes underground, he may, if necessary, condemn the use of so much land of another as is needed for the purpose. The procedure for condemnation shall be that set forth in the Eminent Domain Act of Kentucky.

History. 4360: amend. Acts 1976, ch. 140, § 118.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

Research References and Practice Aids

Cross-References.

Condemnation of land for water supply, by owner of place at which sleeping accommodations and meals are furnished to the public, KRS 416.220 .

381.670. Owner’s consent required for certain routes.

No such route shall pass through the yard or garden, or between the dwelling and spring or other buildings of any owner or occupant of land, without the consent, in writing, of the owner and occupant.

History. 4361.

381.680. Person condemning land may enter it, when.

By virtue of the judgment of the court, the party to whom the privilege has been granted shall have the right to ingress and egress upon the premises to erect and repair the pipes necessary to conduct the water.

History. 4362.

381.690. Protection of burial grounds by cities.

Whenever any burial grounds lie within the corporate limits of a city the governing authorities of the city shall protect the burial grounds from being used for dumping grounds, building sites, playgrounds, places of entertainment and amusement, public parks, athletic fields or parking grounds.

History. 2741p-1.

Research References and Practice Aids

Cross-References.

Cemetery belonging to first-class city, KRS 87.110 .

Eminent domain for burial purposes, KRS 416.210 .

381.695. Care of cemeteries and burial grounds — Legislative bodies of counties and cities may prescribe requirements. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 284, § 1) was repealed by Acts 1978, ch. 118, § 19, effective June 17, 1978.

381.697. Cemeteries maintained by legal owners.

  1. Every cemetery in Kentucky except private family cemeteries shall be maintained by its legal owner or owners, without respect to the individual owners of burial plots in the cemetery, in such a manner so as to keep the burial grounds or cemetery free of growth of weeds, free from accumulated debris, displaced tombstones, or other signs and indication of vandalism or gross neglect.
  2. The owner or owners of public or private burial grounds, regardless of size or number of graves, shall protect the burial grounds from desecration or destruction as stipulated in KRS 525.115(1)(a), (b), or (c) or from being used for dumping grounds, building sites, or any other use which may result in the burial grounds being damaged or destroyed. The provisions of this subsection shall not apply to the owner or owners of public or private burial grounds when the public or private burial grounds have been desecrated, damaged, or destroyed as the result of a crime by another as defined by KRS 500.080 .
  3. The owner or owners of private burial grounds shall be required to construct cemetery protection structures only if the burial ground is located in a county with a county cemetery board and if the board provides compensation to the private burial ground owner for supplies, labor, and other expenses associated with such construction.
  4. The governing authorities of any city within whose corporate limits any public or private burial grounds lie may require the owner or those having claims to the grounds to properly care for them.

History. Enact. Acts 1972, ch. 284, § 2; 2002, ch. 276, § 2, effective July 15, 2002; 2016 ch. 22, § 7, effective July 15, 2016.

NOTES TO DECISIONS

1.Pet Cemeteries.

The language in this chapter indicates that the term “cemetery” contemplates places where dead persons are buried; therefore, the trial court erred in extending the definition of cemetery to include a pet cemetery. Loid v. Kell, 844 S.W.2d 428, 1992 Ky. App. LEXIS 189 (Ky. Ct. App. 1992).

2.Invitee.

Trial court incorrectly classified the accident victim in a negligence action as a licensee rather than an invitee and should have determined the city’s duties based upon the victim’s status as an invitee when a headstone at the grave of the victim’s child in the city’s cemetery fell on the victim while the victim was visiting the grave. As an invitee, the city owed the victim a duty to exercise reasonable care to discover the hazardous condition of the headstone and either correct it or warn the victim of the danger. Johnson v. City of Versailles, 2020 Ky. App. LEXIS 71 (Ky. Ct. App. June 12, 2020).

381.700. Care of burial grounds by owners. [Repealed.]

HISTORY: 2741p-2; repealed by 2016 ch. 22, § 8, effective July 15, 2016.

381.710. Evidence of dedication or use of land as burying ground.

The fact that any tract of land has been set apart for burial purposes and that a part or all of the grounds has been used for burial purposes shall be evidence that such grounds were set aside and used for burial purposes. The fact that graves are not visible on any part of the grounds shall not be construed as evidence that such grounds were not set aside and used for burial purposes.

History. 2741p-3.

NOTES TO DECISIONS

1.Construction.

This section relates to evidence in indicating that land has been set aside for burial purposes. Grinestaff v. Grinestaff, 318 S.W.2d 881, 1958 Ky. LEXIS 159 ( Ky. 1958 ).

381.715. Burial rights in cemetery lots — Abandonment — Resale by cemetery.

  1. As used in this section, “cemetery lot” is a lot containing one (1) or more grave spaces and located within a cemetery registered pursuant to KRS 367.946 in a county containing an urban-county government or in a city.
  2. An officer of the cemetery may cause to be filed, on behalf of the cemetery, an action in the Circuit Court of the county where the cemetery is located requesting that the burial rights in the unused portion of the lots in question be deemed abandoned and that the cemetery be authorized to sell the rights upon entry of the court’s judgment. The defendants in the action shall be the unknown heirs of the original owner of the burial rights in the lots in question.
  3. The petition shall include the following:
    1. The name of the original owner of the burial rights in the lots in question.
    2. The name of all persons buried in the lots and the date of burial, if known.
    3. The name, address, and telephone number of the cemetery office.
    4. An affidavit by the petitioner that:
      1. No person has been buried in the cemetery lots in question for a period of at least one hundred (100) years; and
      2. The identity of any owner of the burial rights in the lot in question or any heir of the owner is unknown to any officer or employee of the cemetery and not discoverable after a good faith attempt by an officer or employee to identify the owner or heir.
  4. Service of process shall be by warning order attorney, appointed by the court pursuant to CR 4.07.
  5. If the court finds the allegations set forth in paragraph (d) of subsection (3) of this section to be true, the court shall enter judgment deeming the burial rights in the lots in question abandoned and authorizing the cemetery to sell the rights.
  6. No judgment shall be entered declaring burial rights abandoned if an owner or heir of a cemetery lot has filed with the cemetery a statement in writing directing that certain grave spaces not be used.

History. Enact. Acts 1984, ch. 267, § 1, effective July 13, 1984; 1994, ch. 70, § 1, effective July 15, 1994.

381.720. Abandoned cemetery in cities — Proceedings to vest title in city.

Whenever in the opinion of the legislative body of a city a cemetery located within the boundaries of such city has been abandoned and the land comprising the said cemetery is needed for a public purpose, an ordinance may be enacted declaring such cemetery, as described by metes and bounds, to be abandoned and authorizing the city attorney to institute suit for the city or other governmental agency created by the city in the Circuit Court of the county in which the city is located against the property comprising the cemetery to declare the said cemetery abandoned and to vest title thereto in the said city, or any governmental agency created by it pursuant to or by authority of the Kentucky Revised Statutes.

History. Enact. Acts 1954, ch. 29, § 1; 1964, ch. 24, § 1; 2014, ch. 92, § 305, effective January 1, 2015.

381.730. Notice of suit.

Upon the filing of the complaint the city or other governmental agency created by the city shall give notice thereof by publication pursuant to KRS Chapter 424.

History. Enact. Acts 1954, ch. 29, § 2; 1964, ch. 24, § 2.

381.740. Assertion of claim to compensation for value of interest in cemetery or lot.

Within thirty (30) days after the last advertisement, any party having a claim to the cemetery or any lot therein or to the mortal remains of a person interred therein, may file his claim in the said proceeding for damages as compensation for the value of his interest in the cemetery or lot to which he has claim. Upon the filing of the aforesaid claim the circuit court shall appoint as commissioners three (3) impartial housekeepers who are owners of land. They shall be sworn to faithfully and impartially discharge their duties. The commissioners shall view the land involved and they may hear evidence or make any inquiry they desire touching the value thereof and award to the claimants who are owners thereof the value of the property taken. They shall return a written report to the office of the clerk of the circuit court describing separately the property which is the subject of each claim. Either the claimant or the complainant may file exceptions to this report and demand a jury trial. The commissioners shall be allowed a reasonable fee which shall be taxed as cost.

History. Enact. Acts 1954, ch. 29, § 3; 1964, ch. 24, § 3.

381.750. Judgment — Removal of bodies and monuments.

If no claim is made within thirty (30) days after the last advertisement, or if claims have been made and compensation duly paid either to the claimants or into court, the court shall declare the cemetery to be abandoned and enter judgment accordingly, vesting fee simple title in the complainant. Thereafter claimants shall have thirty (30) days in which to remove the mortal remains and monuments from lots to which they have been adjudged to have claim, the reasonable cost thereof to be paid by the claimant. If, within thirty (30) days after entry of judgment said remains have not been removed by the claimants thereto, it shall be the duty of such complainant, through its proper officers, to pay for the removal of the monument and the disinterment, removal, and the reinterment of such body, or bodies, in such other cemetery in the county in which said city is located as the protesting lot owner may designate, or if no designation be made, to another suitable cemetery in the county.

History. Enact. Acts 1954, ch. 29, § 4; 1964, ch. 24, § 4.

381.755. Removal of grave or cemetery on application of landowner or county — Procedure — Expenses.

  1. Upon application of the owner of property upon which is located an abandoned grave or cemetery or whenever the fiscal court of any county deems it to be in the best interest of the county to remove and relocate any such grave or cemetery the court may issue an order or resolution authorizing such removal or relocation.
  2. The order or resolution for the removal and relocation of the grave or cemetery pursuant to subsection (1) shall specify and declare that at any time after the expiration of sixty (60) days after the first publication of notice of such intended action pursuant to KRS Chapter 424, the court shall direct the removal and relocation of the grave or cemetery.
  3. Expenses for removal and relocation of any grave or cemetery under the provisions of this section shall be paid by the individual requesting such removal or if the removal is made in the best interest of the county the expenses shall be paid from county funds.
  4. Any grave or cemetery removed under the provisions of this section shall be relocated in a suitable place at the expense of the person or county requesting such removal and relocation.
  5. For the purposes of this section a grave or cemetery shall be considered abandoned when left untended for a period of ten (10) years preceding the date of the resolution for removal and relocation of the grave or cemetery.

History. Enact. Acts 1966, ch. 251, §§ 1 to 5.

Opinions of Attorney General.

A landowner should address his application for removal and relocation of an abandoned grave or cemetery to the county fiscal court. OAG 78-173 .

The owner of mineral rights would not have the kind of ownership rights required by the abandoned cemetery statute and is not able to make an application to the fiscal court for removal and relocation pursuant to subsection (1) of this section. OAG 79-48 .

If a city-owned cemetery had not been abandoned so as to authorize the desecration of the existing graves, the city could reuse the land as a cemetery only after making application with the fiscal court to authorize the removal and relocation of the graves that already existed. OAG 83-265 .

381.760. Cost of proceeding — Burden of proof.

The cost of the proceeding shall be borne by the complainant, and the burden of proof shall be upon the claimant to establish his interest and to establish that it has not been abandoned.

History. Enact. Acts 1954, ch. 29, § 5; 1964, ch. 24, § 5.

Research References and Practice Aids

ALR

Measure of damages for condemnation of cemetery lands. 42 A.L.R.3d 1314.

381.765. Disinterment, removal, and reinterment of graves by Commonwealth, political subdivision or electric power company; Removal by licensed funeral director.

If disinterment, removal, and reinterment of graves is effected by the Commonwealth of Kentucky or any of its agencies, public institutions, or political subdivisions, the United States of America or any agency thereof, or any electric power or lighting company, such disinterment, removal, and reinterment shall be performed by a funeral director duly licensed under the provisions of KRS Chapter 316; provided, however, a person holding a valid funeral director’s license of another state may perform disinterment, removal and reinterment if the state in which such person is licensed has a reciprocal agreement whereby a license granted under the provisions of KRS Chapter 316 is recognized and accepted in that state.

History. Enact. Acts 1978, ch. 237, § 1, effective June 17, 1978.

381.767. Contracts exempt from KRS 381.765.

The provisions of KRS 381.765 shall not affect grave removals for which contracts have been entered into prior to June 17, 1978.

History. Enact. Acts 1978, ch. 237, § 2, effective June 17, 1978.

381.770. Abatement of nuisance — Exceptions — Enforcement ordinance — Lien — Personal liability of property owner. [Repealed]

HISTORY: Enact. Acts 1956, ch. 9; 1968, ch. 10; 1970, ch. 99, § 1; 1972, ch. 108, § 1; 1978, ch. 384, § 509, effective June 17, 1978; 1982, ch. 145, § 3, effective July 15, 1982; 1988, ch. 298, § 1, effective July 15, 1988; 1990, ch. 8, § 1, effective July 13, 1990; 2005, ch. 179, § 1, effective June 20, 2005; 2011, ch. 95, § 10, effective June 8, 2011; 2015 ch. 19, § 43, effective June 24, 2015; repealed by 2016 ch. 86, § 18, effective January 1, 2017.

381.775. Voluntary agreement with property owner for demolition or removal of dilapidated building.

  1. As used in this section:
    1. “Dilapidated building” means a structure, including but not limited to manufactured or mobile homes as defined in KRS 227.550 , which has become unfit and unsafe for human habitation, occupancy, or use or which is dangerous or injurious to the health or safety of the occupants of the building, the occupants of neighboring buildings, or other residents of the county; and
    2. “Relative” means father, mother, brother, sister, husband, wife, son, daughter, aunt, uncle, son-in-law, daughter-in-law, grandparent, grandchild, stepparent, stepchild, or first cousin.
  2. A county may enter into a voluntary agreement with a property owner for the demolition or removal of a dilapidated building.
  3. The agreement shall at least include the following terms and conditions:
    1. A clear description of the building or buildings to be demolished or removed;
    2. Responsibilities of each party to the agreement for disposition of the demolition debris, solid wastes, asbestos materials, or other potential environmental contamination consistent with the requirements of KRS Chapter 224;
    3. A method for establishing the fair market value and an agreement for the disposition of materials, fixtures, or other objects on the property or to be removed from the property, and an itemized list of the materials, fixtures, or other objects to be removed from the property which may be attached to the agreement as an addendum; and
    4. A clear description of the work to be performed and the final condition of the property upon completion of disposition activities.
  4. Each agreement may include terms and conditions for remuneration to the county up to the cost of demolition or removal activities on the property. If remuneration is to be provided to the county, terms and conditions describing the remuneration to be provided shall be included in the agreement. If the county agrees to accept responsibility for removal of materials, fixtures, or other objects from the property, any excess value received from the materials, fixtures, or other objects removed from the property shall be retained by or returned to the property owner in accordance with the agreement for the disposition.
  5. A county shall expend funds necessary to insure any of its employees, officials, and property against any liability or property damage arising out of an act or omission committed in the scope and course of performing work in accordance with an agreement under the provisions of this section for the removal and disposition of materials, fixtures, or other objects located on the owner’s property.
  6. Each agreement shall include the following statement in boldface type “No property owner is required to enter into an agreement under the provisions of KRS 381.775 for the removal and subsequent disposition of materials, fixtures, or other objects located on the owner’s property subject to the agreement. Any agreement under the provisions of KRS 381.775 is strictly voluntary.”
  7. The county shall, in writing and by first-class mail, provide notice to all property owners contiguous to the property on which the dilapidated building exists that the building is to be demolished or removed. That notice shall contain the date of commencement of the demolition or removal of the building and the address of the property on which the building exists. The notice shall be mailed no less than two (2) weeks prior to the date of commencement of the demolition or removal of the building.
  8. No elected or appointed official or employee of the county, or a relative of an official or employee of the county, shall enter into an agreement under the provisions of this section for the demolition or removal of a dilapidated building on their property. No official or employee of the county, or a relative of an official or employee of the county, shall knowingly own or have a direct or indirect financial or pecuniary interest in any agreement or property subject to an agreement entered into under the provisions of this section. If an official, employee, or relative of an official or employee owns or has a direct or indirect financial or pecuniary interest in any agreement or property subject to an agreement entered into under the provisions of this section, the official or employee shall immediately disclose, in writing, that interest to the legislative body, and the disclosure shall be entered in the minutes of the legislative body. Failure to so disclose that interest shall constitute official misconduct in the first degree, in accordance with KRS 522.020 .

History. Enact. Acts 2008, ch. 73, § 1, effective July 15, 2008.

381.780. Removal of open toilets in urban-county government, city of the first class, or city of the home rule class — Lien on property for cost of removal.

  1. The maintenance of an outdoor toilet not connected to a septic tank or sewer system, hereinafter called an open toilet, within the boundaries of an urban-county government, a city of the first class, or a city of the home rule class is hereby declared to be a public nuisance.
  2. When an open toilet is discovered, the director of sanitation or other responsible officer designated by the city legislative body shall give written notice to the property owner to remove the open toilet and fill the toilet pit within ten (10) days after the date of the notice. The notice shall be mailed to the last known address of the property owner, as it appears on the current tax assessment roll. Upon failure of the owner of the property to comply with the terms of the notice, the director of sanitation or other responsible officer designated by the urban-county government or city legislative body is authorized to send employees upon the property to remove the open toilet and fill the toilet pit.
  3. The urban-county government or city shall have a lien against the property for the reasonable cost of labor and materials used in removing the open toilet and filling the toilet pit. The affidavit of the director of sanitation or other responsible officer designated by the urban-county government or city shall constitute prima facie evidence of the amount of the lien and the regularity of the proceedings pursuant to this section, and shall be recorded in the office of the county clerk in the county where the urban-county government or city is located. The lien shall be notice to all persons from the time of its recording and shall bear interest at six percent (6%) per annum thereafter until paid.

History. Enact. Acts 1970, ch. 282, § 1; 2014, ch. 92, § 306, effective January 1, 2015.

Horizontal Property Law

381.805. Short title.

KRS 381.805 to 381.910 shall be known as the Horizontal Property Law.

History. Enact. Acts 1962, ch. 205, § 1.

NOTES TO DECISIONS

1.Boat slip.

Boat slip units could be considered as part of a condominium property regime under the Horizontal Property Law, because a boat slip could not constitute a unit under the plain language of the statute as it was located entirely upon navigable waters and was not an enclosed space that consisted of one or more rooms, and because the events and circumstances leading to the filing of the instant action clearly occurred prior to January 1, 2011, the newly enacted Kentucky Condominium Act was inapplicable. Steenrod v. Louisville Yacht Club Ass'n, 417 S.W.3d 234, 2013 Ky. App. LEXIS 156 (Ky. Ct. App. 2013).

Opinions of Attorney General.

Since the purchaser of a condominium unit receives a recordable deed conveying a fee simple title to the unit and an undivided interest in the common elements, since the owner may convey or encumber the unit in any manner he wishes, but in so doing he does not jeopardize the interests of any co-owner in the project, and since each condominium unit is taxed separately and a co-owner has no responsibility for the individual debts of other co-owners, the instrument or deed conveying or transferring such ownership would be subject to the real estate transfer tax imposed by KRS 142.050 . However, where a corporation had only a 40-year lease which it would assign by an instrument of conveyance to individuals or corporations purchasing condominium units, the instrument used to transfer ownership was an assignment of a lease and was by definition not a deed; therefore the instruments conveying the leasehold interest of the corporation to individual purchasers were not subject to the real estate transfer tax imposed by KRS 142.050 . OAG 82-529 .

Research References and Practice Aids

Comparative Legislation.

Horizontal property laws:

Ill Rev. Stat. 1969, ch. 30, §§ 301-321.

Ind Burns’ Stat., §§ 56-1201—56-1231.

Mo Rev. Stat. 1959, §§ 448.010-448.220.

Ohio Page’s Rev. Code, §§ 5311.01-5311.22.

Tenn Code Ann., §§ 64-2701—64-2722.

Va Code 1950, §§ 55-79.1—55-79.38.

W.Va Code, §§ 36A-1-1—36A-8-3

Kentucky Law Journal.

Skaggs, Erwin, The Horizontal Property Law of Kentucky, 51 Ky. L.J. 46 (1962).

Northern Kentucky Law Review.

Kentucky Law Survey, Youngs, A Compendium of Cases on Future Interests in Kentucky, 6 N. Ky. L. Rev. 283 (1979).

381.810. Definitions for KRS 381.805 to 381.910.

As used in KRS 381.805 to 381.910 , unless the context otherwise requires:

  1. “Unit” means an enclosed space as measured from interior unfinished surfaces consisting of one or more rooms occupying all or part of a floor in a building of one or more floors or stories regardless of whether it be designed for residence, for office, for the operation of any industry or business, for any other type of independent use or any combination of the above uses, provided it has a direct exit to a thoroughfare or to a given common space leading to a thoroughfare;
  2. “Condominium” means the ownership of single units in a single unit or a multiple unit structure or structures with common elements;
  3. “Condominium project” means a real estate condominium project; a plan or project whereby two (2) or more apartments, townhouses, rooms, office spaces, or other units in existing or proposed buildings or structures are offered or proposed to be offered for sale;
  4. “Co-owner” means a person, firm, corporation, partnership, association, trust or other legal entity, or any combination thereof who owns a unit within the building;
  5. “Council of co-owners” means all the co-owners as defined in subsection (4) of this section;
  6. “Developer” means a person who undertakes to develop a real estate condominium project;
  7. “General common elements” means and includes:
    1. The land whether leased or in fee simple, on which the building or buildings stand;
    2. The foundations, main walls, roof, halls, lobbies, stairways, and entrances and exits or communication ways;
    3. The basements, flat roofs, yards, and gardens, except as otherwise provided or stipulated;
    4. The premises for the lodging of janitors or persons in charge of the building(s), except as otherwise provided or stipulated;
    5. The compartments or installations of central services such as power, light, gas, cold and hot water, refrigeration, reservoirs, water tanks and pumps, and the like;
    6. The elevators, garbage incinerators and, in general all devices or installations existing for common use;
    7. Recreational facilities, easements and other facilities outside the building(s), including facilities off-site, available for the common use, in part or in whole, of the regime; and
    8. All other elements of the property rationally of common use or necessary to its existence, upkeep and safety;
  8. “Limited common elements” means and includes those common elements which are agreed upon by all of the co-owners to be reserved for the use of a particular unit or a certain number of units to the exclusion of the other units, such as special corridors, stairways, balconies, patios, elevators, utilities common to the units of a particular floor or building, and the like;
  9. “Majority of co-owners” means owners of fifty-one percent (51%) of the floor area of units comprising the regime;
  10. “Master deed” or “master lease” means the deed or lease declaring the property to be a horizontal property regime;
  11. “Person” means an individual, firm, corporation, partnership, association, trust or other legal entity or any combination thereof;
  12. “Property” means and includes the land whether leasehold or in fee simple and all improvements and structures thereon and all easements, rights and appurtenances belonging thereto;
  13. “To record” means to record in accordance with KRS Chapter 382, or other recording statutes;
  14. All pronouns used in KRS 381.805 to 381.910 include the male, female and neuter genders and include the singular or plural numbers, as the case may be.

History. Enact. Acts 1962, ch. 205, § 2; 1974, ch. 35, § 1; 1974, ch. 381, § 1.

Legislative Research Commission Note.

This section was amended by two 1974 acts which do not appear to be in conflict and have been compiled together.

NOTES TO DECISIONS

1.Unit.

Boat slip units could be considered as part of a condominium property regime under the Horizontal Property Law, because a boat slip could not constitute a unit under the plain language of the statute as it was located entirely upon navigable waters and was not an enclosed space that consisted of one or more rooms, and because the events and circumstances leading to the filing of the instant action clearly occurred prior to January 1, 2011, the newly enacted Kentucky Condominium Act was inapplicable. Steenrod v. Louisville Yacht Club Ass'n, 417 S.W.3d 234, 2013 Ky. App. LEXIS 156 (Ky. Ct. App. 2013).

Cited:

Monarch v. Lodge Condominium Council of Co-Owners, Inc., 684 S.W.2d 317, 1985 Ky. App. LEXIS 511 (Ky. Ct. App. 1985).

Opinions of Attorney General.

This section is applicable to single unit mortgage loans to purchase condominiums. OAG 73-444 .

381.815. Establishment of a condominium property regime.

Whenever a developer, the sole owner, or the co-owners of a building or buildings, constructed or to be constructed, expressly declare, through the recordation of a master deed or lease, which shall set forth the particulars enumerated by KRS 381.835 , their desire to submit their property to the regime established by KRS 381.805 to 381.910 , there shall be thereby established a condominium property regime.

History. Enact. Acts 1962, ch. 205, § 3; 1974, ch. 381, § 2.

NOTES TO DECISIONS

Cited:

Monarch v. Lodge Condominium Council of Co-Owners, Inc., 684 S.W.2d 317, 1985 Ky. App. LEXIS 511 (Ky. Ct. App. 1985).

381.820. Conveyance of units — Recordation.

Once the property is submitted to the condominium property regime, a unit in the building(s) may be individually conveyed and encumbered and may be the subject of ownership, possession or sale and of all types of juridic acts inter vivos or mortis causa, as if it were sole and entirely independent of the other units in the building(s) of which they form a part, and the corresponding individual titles and interest shall be recordable.

History. Enact. Acts 1962, ch. 205, § 4; 1974, ch. 381, § 3.

381.825. Joint or common ownership.

Any unit may be jointly or commonly owned by more than one (1) person.

History. Enact. Acts 1962, ch. 205, § 5; 1974, ch. 381, § 4.

381.827. Requirements for subdividing units.

  1. The owner of a unit designed for office, industrial or business use may divide his unit into two (2) or more smaller units. No interest in the unit shall be conveyed until the master deed and floor plans have been modified as provided in this section.
  2. Prior to subdividing his unit, the owner shall prepare a set of floor plans which shall show the changes being made in the unit involved. The plans shall bear the verified statement of a registered architect or professional engineer that they accurately portray the unit involved and the changes being made, and the unit owner shall attach to the plans a verified statement which shall contain:
    1. The name by which the property is known;
    2. A reference to the book and page of the recorded master deed and floor plans of the property and any amendments thereto in the office of the county clerk of the county in which the land described in the master deed is situated;
    3. The original unit number of each unit involved in the division, a description or designation of the building in which the unit is located, and the new unit number of each unit being formed;
    4. A statement of the location, approximate area, number of rooms and the structural changes in the perimeter and interior walls, floors, ceilings, windows and doors of the unit being formed and the immediate common element or limited common element to which the unit has access, and any other data necessary for the proper identification of the units being formed by changes to the original unit;
    5. A description of the percentage of interest of the original unit in the common elements, and a description of the new percentage or percentages of interest in the common elements of the units being formed. The percentage of interest in the common elements of the units being formed shall be in proportion to the floor area of the original unit and shall, when taken cumulatively, total the same percentage of interest in the common elements as that of the original unit;
    6. Any further provisions that would serve to clarify the changes being made.
  3. The floor plans and verified statement shall be approved in writing by a majority, unless otherwise provided by the master deed, of the council of co-owners, and by any person holding a lien on such units, and shall be filed for record with the county clerk in the county in which the land described in the master deed is situated as provided in KRS 381.835 . The floor plans and verified statement shall be considered as an amendment to the original master deed and floor plans for the sole purpose of dividing a unit and the corresponding percentage of interest in the common elements.

History. Enact. Acts 1974, ch. 381, § 16.

381.830. Ownership of unit — Use of general common elements.

    1. A unit owner shall have the exclusive ownership to his unit and shall have a common right to a share, with other co-owners, in the common elements of the property, equivalent to the percentage representing the floor area of the individual unit, with relation to the floor area of the whole property. This percentage shall be computed by taking as a basis the floor area of the individual unit in relation to the floor area of the property as a whole. (1) (a) A unit owner shall have the exclusive ownership to his unit and shall have a common right to a share, with other co-owners, in the common elements of the property, equivalent to the percentage representing the floor area of the individual unit, with relation to the floor area of the whole property. This percentage shall be computed by taking as a basis the floor area of the individual unit in relation to the floor area of the property as a whole.
    2. Such percentage of common interest shall be expressed at the time the condominium property regime is constituted, shall have a permanent character, and, except as may be otherwise provided in KRS 381.810 to 381.910 , shall not be altered without the acquiescence of the co-owners representing all the units of the building(s). The master deed may, however, contain provisions relating to the appropriation, taking or condemnation by eminent domain by the federal, state or local government, or an instrumentality thereof, including, but not limited to, reapportionment or other change of the common interest appurtenant to each unit, or part thereof remaining after a partial appropriation, taking or condemnation. The master deed of a regime under construction may further provide that by later amendment thereto and upon completion of all units, percentage of common interest shall be redistributed on an as-built basis; provided, however, that the number of units originally constituted in the regime may not be increased during construction.
  1. Each co-owner may use the general common elements in accordance with the purpose for which they are intended, without hindering or encroaching upon the lawful rights of the other co-owners.

History. Enact. Acts 1962, ch. 205, § 6; 1966, ch. 245, § 1; 1974, ch. 381, § 5.

381.835. Recording — Requirements of master deed or lease — Record of floor plans.

  1. The county clerk shall immediately set up the mechanics and methods by which recordation of a master deed or lease and of the individual units may be made. Provisions shall be made for the recordation of the individual units on subsequent resales, mortgages, and other encumbrances, as is done with all other real estate recordation. The master deed or lease to which KRS 381.815 refers shall express the following particulars:
    1. The description of the land, whether leased or in fee simple, and the building, expressing their respective areas;
    2. The general description and the number of each unit, expressing its area, location, and any other data necessary for its identification;
    3. The description of the general common elements of the building; and
    4. The common elements, both general and limited, shall remain undivided and shall not be the object of an action for partition or division of the co-ownership. Any covenant to the contrary shall be void.
  2. Simultaneously with the recording of the declaration, there shall be filed in the office of the recording officer a set of the floor plans of the building or buildings, showing the layout, location, unit numbers, and dimensions of the units, stating the name of the property or that it has no name, and bearing the verified certification by a licensed architect or professional engineer that it is an accurate copy of portions of the plans of the building or buildings as filed with and approved by the county or city and county officer having jurisdiction over the issuance of permits for the construction of buildings, or, in the alternative, certifying that the plans fully and accurately depict the layout, location, unit numbers, and dimensions of the units as built. If the plans do not include a verified statement of a licensed architect or professional engineer that the plans fully and accurately depict the layout, location, unit numbers, and dimensions of the units as built, there shall be recorded prior to the first conveyance of any unit an amendment to the declaration to which shall be attached a verified statement of a professional land surveyor certifying that the plans filed, or being filed simultaneously with the amendment, fully and accurately depict the layout, location, unit numbers, and dimensions of the units as built. The plans shall be kept by the recording officer in a separate file for each property, indexed in the same manner as a conveyance entitled to record, numbered serially in the order of receipt, each designated “condominium ownership,” with the name of the property, if any, and each containing an appropriate reference to the recording of the declaration. The record of the declaration shall also contain a reference to the file number of the floor plans of the building or buildings on the property affected.

History. Enact. Acts 1962, ch. 205, § 7; 1966, ch. 245, § 2; 1974, ch. 381, § 6; 1998, ch. 214, § 41, effective January 1, 1999.

NOTES TO DECISIONS

Cited:

Monarch v. Lodge Condominium Council of Co-Owners, Inc., 684 S.W.2d 317, 1985 Ky. App. LEXIS 511 (Ky. Ct. App. 1985).

Opinions of Attorney General.

Existing records which the county clerk is required to maintain pursuant to the provisions of KRS chapter 382 can, in the discretion of the individual county clerk, afford adequate facility for the maintenance of the records required by this section. OAG 62-517 .

The provisions of this section would not require the county clerk to establish an individual deed book for the purpose of taking care of the requirements of the horizontal property act although they may establish a separate book for such purpose. OAG 62-517 .

381.837. Master deed exceptions.

If a condominium does not contain any unit which is designed for occupancy by only one family or household, or if the floor area of all those units which are designed for occupancy by only one (1) family or household does not in the aggregate exceed ten percent (10%) of the floor area of all units in the condominium, then the following provisions shall be applicable, notwithstanding any other provisions of this chapter:

The master deed may provide:

  1. That to any extent specified in the master deed the common profits shall be distributed among, and the common expenses shall be charged to, the unit owners in proportions other than according to their respective percentages of the undivided interest in the common areas and facilities;
  2. That to any extent specified in the master deed the unit owners shall not be personally liable for sums assessed for their share of common expenses, but such provisions shall not adversely affect any lien for said share;
  3. That the priority provided in KRS 381.883 shall not prohibit subordination of a mortgage lien to the lien for common expenses;
  4. A procedure for submitting the disputes arising from the administration of the condominium to arbitration or other impartial determination; and
  5. Terms and conditions differing from those set forth in KRS 381.830 or 381.890 regarding rebuilding made necessary by fire or other casualty loss, the making of improvements and allocation of the costs of such rebuilding or improvements, and the removal of the condominium or portion thereof from the provisions of this chapter; and in such case, the terms and conditions of the master deed shall take precedence over the provisions of KRS 381.830 or 381.890 to the extent they are inconsistent.

History. Enact. Acts 1974, ch. 381, § 18; 1988, ch. 115, § 1, effective July 15, 1988.

381.840. Individual deeds — Contents.

The deed of each individual unit shall describe such unit by making reference to the applicable master deed and floor plans required under KRS 381.835 , designating the letter or number or other appropriate designation of the unit, followed by the words “a condominium unit”. Any conveyance of an individual unit shall be deemed to also convey the undivided interest of the owner in the common elements, both general and limited, appertaining to said unit without specifically or particularly referring to same.

History. Enact. Acts 1962, ch. 205, § 8; 1974, ch. 381, § 7.

381.845. Designation of apartments — Effect of conveyance. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 205, § 9) was repealed by Acts 1974, ch. 381, § 19.

381.850. Waiver of regime — Effect of encumbrances.

All of the co-owners or the sole owner of a building constituted into a horizontal property regime may waive this regime and request the county clerk to regroup or merge the records of the filial estates with the principal property, provided, that the filial estates are unencumbered, or if encumbered, that the creditors in whose behalf the encumbrances are recorded agree to accept as security the undivided portions of the property owned by the debtors.

History. Enact. Acts 1962, ch. 205, § 10.

NOTES TO DECISIONS

Cited:

Monarch v. Lodge Condominium Council of Co-Owners, Inc., 684 S.W.2d 317, 1985 Ky. App. LEXIS 511 (Ky. Ct. App. 1985).

381.855. Subsequent reestablishment of regime.

The merger provided for in KRS 381.850 shall in no way bar the subsequent constitution of the property into another horizontal property regime whenever so desired and upon observance of the provisions of KRS 381.805 to 381.910 .

History. Enact. Acts 1962, ch. 205, § 11.

381.860. Administration of building.

The administration of the building or buildings constituted into a condominium property regime shall be governed by bylaws approved and adopted by the council of co-owners. The bylaws may be amended from time to time by vote of a majority of the council.

History. Enact. Acts 1962, ch. 205, § 12; 1974, ch. 381, § 8.

381.865. Books of account — Inspection — Audit or review by independent accountant. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 205, § 13; 1974, ch. 381, § 9; 2010, ch. 97, § 55, effective January 1, 2011) was repealed by Acts 2012, ch. 99, § 14 effective April 11, 2012.

381.870. Maintenance — Pro rata contribution — Adjustments.

All co-owners are bound to contribute in accordance with their percentage of common interest toward the expenses of administration and of maintenance, repairs and replacement reserves of the general common elements, and, in the proper case, of the limited common elements of the regime, and toward any other expenses lawfully assessed under the master deed and/or by the council of co-owners. Provided, however, that the master deed may provide for adjustments by the council of co-owners for contributions proportioned upon a consideration of a combination of floor area, the number of occupants, demand on public utilities and accessibility to limited common elements. No owner shall be exempt from contributing toward such expenses by waiver of the use or enjoyment of the common elements, both general and limited, or by abandonment of the unit belonging to him; provided, abatement or reduction in an owner’s contribution may be granted by the council of co-owners for a reasonable period of time, during which a unit is uninhabitable as the result of damage or destruction.

History. Enact. Acts 1962, ch. 205, § 14; 1974, ch. 381, § 10.

NOTES TO DECISIONS

Cited:

Monarch v. Lodge Condominium Council of Co-Owners, Inc., 684 S.W.2d 317, 1985 Ky. App. LEXIS 511 (Ky. Ct. App. 1985).

381.875. Exemptions.

The laws relating to exemptions as set out in KRS Chapter 427 are applicable to the individual units which shall have the benefit of said exemption in those cases the same as in ownership of any other property.

History. Enact. Acts 1962, ch. 205, § 15; 1968, ch. 152, § 156; 1974, ch. 381, § 11.

NOTES TO DECISIONS

Cited:

In re McMahon, 60 B.R. 632, 1986 Bankr. LEXIS 6120 (Bankr. W.D. Ky. 1986 ).

381.880. Assessments — Priority — Exceptions. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 205, § 16) was repealed by Acts 1966, ch. 245, § 4.

381.883. Lien for unpaid assessments — Foreclosure — Suit.

All sums assessed by the council of co-owners but unpaid for the unit’s share of the common expenses constitute a lien on such unit prior to all other liens, except only (1) liens for taxes and assessments lawfully imposed by governmental authority against such unit, and (2) all sums unpaid on first mortgages of record. Such lien may be enforced by suit by the administrator or board of administration, acting on behalf of the unit owners, in like manner as a mortgage of real property. In any such enforcement action the unit owner shall be required to pay a reasonable rental for the unit, if so provided in the bylaws, and the plaintiff in such enforcement action shall be entitled to the appointment of a receiver to collect the same. The administrator or board of administration, acting on behalf of the unit owners, shall have power, unless prohibited by the declaration, to bid in the unit at court sale, and to acquire and hold, lease, mortgage and convey the same. Suit to recover a money judgment for unpaid common expenses of an owner shall be maintainable without lien enforcement or waiving the lien securing the same.

History. Enact. Acts 1966, ch. 245, § 3; 1974, ch. 381, § 12.

NOTES TO DECISIONS

1.Other Liens.

Mechanic’s lien provisions of KRS 376.010 have no applicability to dispute concerning nonpayment of fees and assessments relative to condominium, nor are they supplemental to the provisions of this section. Bank of the Bluegrass & Trust Co. v. Richmond Square Office Townhouse Condos. Council Co-Owners, 965 S.W.2d 827, 1997 Ky. App. LEXIS 145 (Ky. Ct. App. 1997).

381.885. Insurance.

The council of co-owners may acquire insurance protection for the regime, including, but not exclusively, casualty, liability and employee workers’ compensation insurance, without prejudice to the right of each co-owner to insure his own unit on his own account and for his own benefit. The premiums on such insurance shall be considered common expenses, enforceable under lien rights, provided, should the amount of any insurance premium be affected by a particular use of a unit or units, the owners of such units shall be required to pay any increase in premium resulting from such use.

History. Enact. Acts 1962, ch. 205, § 17; 1974, ch. 381, § 13.

381.890. Destruction — Reconstruction.

  1. In case of fire or other destruction or damage the regime’s insurance indemnity, except as provided in subsection (3) of this section, shall be applied to reconstruct and repair the common elements affected.
  2. Where the destruction and damage is not insured or where the insurance indemnity is not sufficient to cover the cost of reconstruction or repair, the cost (or added cost) shall be paid by the co-owners as a common expense, the council by a majority vote being authorized to borrow funds therefor and to amortize the repayment of same over a period of time, not exceeding the reasonable life of the reconstruction or repairs.
  3. Reconstruction shall not be compulsory where two-thirds (2/3) or more of a building is destroyed provided there are provisions in the master deed or bylaws of the regime making adequate provision for reasonable compensation to those co-owners who are deprived of their interest as the result of the failure to reconstruct and further providing for the recalculation and redistribution of the percentage of common interest.

History. Enact. Acts 1962, ch. 205, § 18; 1974, ch. 381, § 14.

381.895. Reconstruction — Insufficient indemnity — Contribution. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 205, § 19) was repealed by Acts 1974, ch. 381, § 19.

381.897. Individual and common liabilities for injuries or damages.

  1. Where a judgment arising from a risk common to all of the co-owners is in excess of the liability insurance in force, the liability of any co-owner shall not exceed his pro rata share as determined by the percentage the value of his individual unit bears to the value of the property as a whole. An uncollected share of a judgment shall not be reassessed among the other co-owners.
  2. Any unit owner shall be individually liable for injuries or damages which result from his own negligence or willful misconduct or which occur within his individual unit to the same extent and degree as the individual owner of any other residential, office, industrial or business property.

History. Enact. Acts 1974, ch. 381, § 17.

381.900. Tax assessments — Individual liability — Forfeiture or sale.

Taxes, assessments and other charges of this state, or of any political subdivision, or of any special improvement district, or any other taxing or assessing authority shall be assessed against and collected on each individual unit, each of which shall be carried on the tax books as a separate and distinct entity for that purpose, and not on the property as a whole. The valuation of the general and limited common elements shall be assessed proportionately among the co-owners thereof. No forfeiture or sale of the improvements or property as a whole for delinquent taxes, assessments or charges shall ever divest or in anywise affect the title to an individual unit so long as taxes, assessments and charges to said individual unit are currently paid.

History. Enact. Acts 1962, ch. 205, § 20; 1974, ch. 381, § 15.

381.905. Interpretation of KRS 381.805 to 381.910.

The provisions of KRS 381.805 to 381.910 shall be in addition to and supplemental to all other provisions of the Kentucky Revised Statutes, provided that wherever the application of the provisions of KRS 381.805 to 381.910 conflict with the application of such other provisions, KRS 381.805 to 381.910 shall prevail.

History. Enact. Acts 1962, ch. 205, § 21.

381.910. Planning and zoning.

Whenever they deem it proper, the planning and zoning commission of any county or municipality may adopt supplemental rules and regulations governing a horizontal property regime established under KRS 381.805 to 381.910 in order to implement this program.

History. Enact. Acts 1962, ch. 205, § 22.

Kentucky Condominium Act

General Provisions

381.9101. Short title for KRS 381.9101 to 381.9207.

KRS 381.9101 to 381.9207 shall be known and may be cited as the Kentucky Condominium Act.

History. Enact. Acts 2010, ch. 97, § 1, effective January 1, 2011.

Research References and Practice Aids

Kentucky Bench & Bar.

Brinkman, The Kentucky Condominium Act, Vol. 74, No. 5, September 2010, Ky. Bench & Bar 16.

381.9103. Application and construction of KRS 381.9101 to 381.9207.

  1. Except as provided in subsections (2), (3 ), and (4) of this section, KRS 381.9101 to 381.9207 applies to all condominiums created within the Commonwealth after January 1, 2011.
  2. KRS 381.9109 , 381.9111 , 381.9113 , 381.9129 , 381.9131 , 381.9167 , 381.9169 , 381.9183 , 381.9193 , 381.9197 , 381.9201(2), and 381.9203 , and KRS 381.9105 to the extent necessary in construing any of these sections, apply to all condominiums created before January 1, 2011, but only to the extent of events or circumstances occurring after January 1, 2011, and do not invalidate existing provisions of the declaration, bylaws, plats, or plans of those condominiums.
  3. Unit owners of units to which one hundred percent (100%) of the votes in the association are allocated, or such lesser percentage as stated in the declaration as necessary to terminate the condominium, may elect that KRS 381.9101 to 381.9207 shall apply to a condominium created before the January 1, 2011. In such event the declaration, bylaws, plats, or plans of the condominium shall be modified or amended to the extent necessary to be consistent with KRS 381.9101 to 381.9207 .
  4. Notwithstanding any provision to the contrary set forth in the declaration, bylaws, plats, or plans of a condominium created before January 1, 2011, the executive board of the association shall have the right to rely on the provisions set forth in KRS 381.9101 to 381.9207 to deal with any situation that presents a public safety or public health issue to one (1) or more unit owners in the association.
  5. KRS 381.805 to 381.910 shall not apply to condominiums created after January 1, 2011, and do not invalidate any amendment to the declaration, bylaws, plats, or plans of any condominium created before January 1, 2011, if the amendment would be permitted by KRS 381.910 1 to 381.9207 . The amendment shall be adopted in conformity with the procedures and requirements specified by those instruments and by KRS 381.805 to 381.910. If the amendment grants to any person any rights, powers, or privileges permitted by KRS 381.9101 to 381.9207 , all correlative obligations, liabilities, and restrictions in KRS 381.9101 to 381.9207 shall also apply to that person.

History. Enact. Acts 2010, ch. 97, § 2, effective January 1, 2011; 2012, ch. 99, § 1, effective April 11, 2012.

NOTES TO DECISIONS

1.Unit.

Boat slip units could be considered as part of a condominium property regime under the Horizontal Property Law, because a boat slip could not constitute a unit under the plain language of the statute as it was located entirely upon navigable waters and was not an enclosed space that consisted of one or more rooms, and because the events and circumstances leading to the filing of the instant action clearly occurred prior to January 1, 2011, the newly enacted Kentucky Condominium Act was inapplicable. Steenrod v. Louisville Yacht Club Ass'n, 417 S.W.3d 234, 2013 Ky. App. LEXIS 156 (Ky. Ct. App. 2013).

Research References and Practice Aids

Kentucky Bench & Bar.

Brinkman, The Kentucky Condominium Act, Vol. 74, No. 5, September 2010, Ky. Bench & Bar 16.

381.9105. Definitions for KRS 381.9101 to 381.9207.

As used in KRS 381.9101 to 381.9207 , or in the declaration or bylaws of any condominium unless specifically provided or the context otherwise requires:

  1. “Affiliate of a declarant” means any person who controls, is controlled by, or is under common control with a declarant.
    1. A person controls a declarant if the person:
      1. Is a general partner, officer, director, limited liability entity member or manager, or employer of the declarant and has the legal authority to direct the business and affairs of the declarant;
      2. Directly, indirectly, or acting in concert with one (1) or more other persons, or through one (1) or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing more than fifty percent (50%) of the voting interest in the declarant; or
      3. Controls in any manner the election of a majority of the directors of the declarant.
    2. A person is controlled by a declarant if the declarant:
      1. Is a general partner, officer, director, limited liability entity member or manager, or employer of the person and has the legal authority to direct the business and affairs of the person;
      2. Directly, indirectly, or acting in concert with one (1) or more other persons, or through one (1) or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing more than fifty percent (50%) of the voting interest in the person; or
      3. Controls in any manner the election of a majority of the directors of the person.

        Control does not exist if the powers described in paragraph (a) or (b) of this subsection are held solely as security for an obligation and are not exercised;

  2. “Allocated interests” means the undivided interest in the common elements, the common expense liability, and votes in the association allocated to each unit;
  3. “Association” or “unit owners’ association” means the association organized pursuant to KRS 381.9165 ;
  4. “Capital expenditure” means an expenditure to replace, repair, or improve common elements, or acquire new common elements;
  5. “Common elements” means all portions of a condominium other than the units;
  6. “Common expenses” means expenditures made or financial liabilities incurred by the association, to the extent permitted by the declaration or KRS 381.9101 to 381.9207 , together with any allocations to reserves;
  7. “Common expense liability” means the liability for common expenses allocated to each unit pursuant to KRS 381.9137 ;
  8. “Condominium” means real estate, portions of which are designated for separate ownership and the remainder of which is designated for common ownership solely by the owners of those portions. Real estate is not a condominium unless the undivided interests in the common elements are vested in the unit owners;
  9. “Declarant” means any person or group of persons acting in concert who:
    1. As part of a common promotional plan for the condominium, formulated, sponsored, and promoted by the person or persons, offers to dispose of his, her, or their interest in a unit within the condominium not previously disposed of; or
    2. Reserves or succeeds to any special declarant right;
  10. “Declaration” means any instrument, including a master deed, however denominated, that creates a condominium, and any amendments to those instruments;
  11. “Development rights” means any right or combination of rights reserved by a declarant in the declaration to:
    1. Add real estate to a condominium;
    2. Create units, common elements, or limited common elements within a condominium;
    3. Subdivide units or convert units into common elements;
    4. Allocate or reallocate common elements among units; or
    5. Withdraw real estate from a condominium;
  12. “Dispose” or “disposition” means a voluntary transfer to a purchaser of any legal or equitable interest in a unit, but does not include the creation, assignment, transfer, or release of a mortgage or security interest;
  13. “Executive board” means the body, regardless of name, designated in the declaration to act on behalf of the association;
  14. “Identifying number” means a symbol or address that identifies only one (1) unit in a condominium;
  15. “Leasehold condominium” means a condominium in which all or a portion of the real estate is subject to a lease the expiration or termination of which will terminate the condominium or reduce its size;
  16. “Limited common element” means a portion of the common elements allocated by the declaration or by operation of KRS 381.9127 for the exclusive use of one (1) or more but fewer than all of the units;
  17. “Master association” means an organization described in KRS 381.9161 , whether or not it is also an association described in KRS 381.9165 ;
  18. “Person” means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, limited liability company, government, governmental subdivision or agency, or other legal or commercial entity;
  19. “Purchaser” means any person other than a declarant or a person in the business of selling real estate for his or her own account, who by means of a voluntary or involuntary transfer acquires a legal or equitable interest in a unit other than:
    1. A leasehold interest, including renewal options of less than twenty (20) years; or
    2. As security for an obligation;
  20. “Real estate” means any fee simple interest, leasehold estate, or other estate or interest in, over, or under land, including structures, fixtures, and other improvements and interests which by custom, usage, or law pass with a conveyance of land though not described in the contract of sale or instrument of conveyance. “Real estate” includes parcels with or without upper or lower boundaries, and spaces that may be filled with air or water;
  21. “Recording data” means the book and page number of instruments recorded in the office of a county clerk;
  22. “Residential” means use for dwelling or personal recreation, or both;
  23. “Special declarant rights” means rights reserved for the benefit of a declarant to:
    1. Complete improvements indicated on plats and plans filed with the declaration;
    2. Exercise any development rights;
    3. Maintain sales offices, management offices, signs advertising the condominium, and models;
    4. Use easements through the common elements for the purpose of making improvements within the condominium or within real estate which may be added to the condominium;
    5. Make the condominium part of a larger condominium or a planned community;
    6. Make the condominium subject to a master association; or
    7. Appoint or remove any officer of the association, master association, or any executive board member during any period of declarant control;
  24. “Unit” means a physical portion of the condominium designated for separate ownership or occupancy, the boundaries of which are described in KRS 381.9133 , including patios, balconies, and other spaces if designated in the declaration; and
  25. “Unit owner” means a declarant or other person who owns a unit, or a lessee of a unit in a leasehold condominium whose lease expires simultaneously with any lease the expiration or termination of which will remove the unit from the condominium, but does not include a person having an interest in a unit solely as security for an obligation or as a sublessee of a lessee of a unit.

History. Enact. Acts 2010, ch. 97, § 3, effective January 1, 2011; 2012, ch. 99, § 2, effective April 11, 2012.

381.9107. Variation by agreement.

Except as expressly provided in KRS 381.9101 to 381.9207 , provisions of KRS 381.9101 to 381.9207 may not be varied by agreement, and rights conferred by KRS 381.9101 to 381.9207 may not be waived. A declarant may not act under a power of attorney, or use any other device, to evade the limitations or prohibitions of KRS 381.9101 to 381.9207 or the declaration.

History. Enact. Acts 2010, ch. 97, § 4, effective January 1, 2011.

381.9109. Separate assessments, titles, and taxation.

  1. If there is any unit owner other than a declarant, each unit that has been created, together with its interest in the common elements, constitutes for all purposes a separate parcel of real estate.
  2. If there is any unit owner other than a declarant, each unit shall be separately taxed and assessed, and no separate tax or assessment may be rendered against any common elements for which a declarant has reserved no development rights.
  3. Any portion of the common elements for which the declarant has reserved any development right shall be separately taxed and assessed against the declarant, and the declarant alone is liable for payment of those taxes.
  4. If there is no unit owner other than a declarant, the real estate comprising the condominium may be taxed and assessed in any manner provided by law.
  5. A residential unit of a condominium may be a homestead as allowed in KRS Chapters 132 and 427.

History. Enact. Acts 2010, ch. 97, § 5, effective January 1, 2011.

381.9111. Applicability of local ordinances, regulations, building codes, or other real estate use law.

A zoning, subdivision, building code, or other real estate use law, ordinance, or regulation shall not prohibit the condominium form of ownership or impose any requirement upon a condominium which it would not impose upon a physically identical development under a different form of ownership. Otherwise, no provision of KRS 381.9101 to 381.9207 invalidates or modifies any provision of any zoning, subdivision, building code, or other real estate use law, ordinance, or regulation.

History. Enact. Acts 2010, ch. 97, § 6, effective January 1, 2011.

381.9113. Eminent domain.

  1. If a unit is acquired by eminent domain, or if part of a unit is acquired by eminent domain leaving the unit owner with a remnant which may not practically or lawfully be used for any purpose permitted by the declaration, the award shall compensate the unit owner for his or her unit and its interest in the common elements, whether or not any common elements are acquired. Upon acquisition, unless the decree otherwise provides, that unit’s allocated interests are automatically reallocated to the remaining units in proportion to the respective allocated interests of those units before the taking, and the association shall promptly prepare, execute, and record an amendment to the declaration reflecting the reallocations. Any remnant of a unit remaining after part of a unit is taken under this subsection is thereafter a common element.
  2. Except as provided in subsection (1) of this section, if part of a unit is acquired by eminent domain, the award shall compensate the unit owner for the reduction in value of the unit and its interest in the common elements, whether or not any common elements are acquired. Upon acquisition, unless the decree otherwise provides:
    1. The unit’s allocated interests are reduced in proportion to the reduction in the size of the unit; and
    2. The portion of the allocated interests divested from the partially acquired unit are automatically reallocated to that unit and the remaining units in proportion to the respective allocated interests of those units before the taking, with the partially acquired unit participating in the reallocation on the basis of its reduced allocated interests.
  3. If part of the common elements is acquired by eminent domain, the portion of the award attributable to the common elements taken shall be paid to the association and, unless the declaration provides otherwise, the award attributable to the acquisition of a limited common element shall be equally divided among the owners of the units to which that limited common element was allocated at the time of acquisition.
  4. The court decree shall be recorded in every county in which any portion of the condominium is located.

History. Enact. Acts 2010, ch. 97, § 7, effective January 1, 2011.

381.9115. Supplemental general principles of law applicable to KRS 381.9101 to 381.9207.

Unless displaced by a particular provision of KRS 381.9101 to 381.9207 , the principles of law and equity, including the law of corporations and unincorporated associations, the law of real property, and the law relative to capacity to contract, principal and agent, eminent domain, estoppel, fraud, misrepresentation, duress, coercion, mistake, receivership, substantial performance, or other validating or invalidating cause, shall supplement KRS 381.9101 to 381.9207 .

History. Enact. Acts 2010, ch. 97, § 8, effective January 1, 2011.

381.9117. Construction against implicit repeal of KRS 381.9101 to 381.9207.

KRS 381.9101 to 381.9207 being a general act intended as a unified coverage of its subject matter, no part of it shall be deemed to be impliedly repealed by subsequent legislation if that construction can reasonably be avoided.

History. Enact. Acts 2010, ch. 97, § 9, effective January 1, 2011.

381.9119. Purposes and policies of KRS 381.9101 to 381.9207 — Kentucky Condominium Act to be liberally construed.

  1. KRS 381.9101 to 381.9207 shall be liberally construed and applied to promote its underlying purposes and policies.
  2. The underlying purposes and policies of KRS 381.9101 to 381.9207 are:
    1. To simplify, clarify, and modernize the law governing condominiums; and
    2. To make uniform the law among the various jurisdictions.

History. Enact. Acts 2010, ch. 97, § 10, effective January 1, 2011.

381.9121. Severability of invalid provision or application.

If any provision of KRS 381.9101 to 381.9207 or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of KRS 381.9101 to 381.9207 that can be given effect without the invalid provision or application, and to this end the provisions of KRS 381.9101 to 381.9207 are severable.

History. Enact. Acts 2010, ch. 97, § 11, effective January 1, 2011.

381.9123. Obligation of good faith.

Every contract or duty governed by KRS 381.9101 to 381.9207 imposes an obligation of good faith in its performance or enforcement.

History. Enact. Acts 2010, ch. 97, § 12, effective January 1, 2011.

Creation, Alteration, and Termination of Condominiums

381.9125. Creation of condominium.

A condominium may be created pursuant to KRS 381.9101 to 381.9207 only by recording a declaration executed in the same manner as a deed. The declaration shall be recorded in every county in which any portion of the condominium is located, and shall be indexed in the name of the condominium, the association, and each person executing the declaration. The county clerk shall determine the methods and mechanics for recording and storing any plans and plats associated with a declaration or amendment of a declaration.

History. Enact. Acts 2010, ch. 97, § 13, effective January 1, 2011.

381.9127. Unit boundaries.

  1. If walls, floors, or ceilings are designated as boundaries of a unit, all lath, furring, wallboard, plasterboard, plaster, paneling, tiles, wallpaper, paint, finished flooring, and any other materials constituting any part of the finished surfaces thereof are a part of the unit, and all other portions of the walls, floors, or ceilings are a part of the common elements unless otherwise specified in the declaration.
  2. If any chute, flue, duct, wire, conduit, heating system, air conditioning system, bearing wall, bearing column, or any other fixture lies partially within and partially outside the designated boundaries of a unit, any portion thereof serving only that unit is a limited common element allocated solely to that unit, and any portion thereof serving more than one (1) unit or any portion of the common elements is a part of the common elements unless otherwise specified in the declaration.
  3. Subject to subsection (2) of this section, all spaces, interior partitions, and other fixtures and improvements within the boundaries of a unit are a part of the unit.
  4. Any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, and all exterior doors and windows or other fixtures designed to serve a single unit, but located outside the unit’s boundaries, are limited common elements allocated exclusively to that unit.
  5. Any sprinkler system, alarm system, or other system of protection that serves more than one (1) unit, unless all units served are owned by the same owner, shall be part of the common elements.
  6. All interior hallways, stairways, and other interior space, including all fixtures located within these spaces, that are located outside of a unit shall be limited common elements allocated exclusively to the units appurtenant to or otherwise accessible from such interior spaces.

History. Enact. Acts 2010, ch. 97, § 14, effective January 1, 2011.

381.9129. Construction and validity of declaration and bylaws.

  1. All provisions of the declaration and bylaws are severable.
  2. The rule against perpetuities shall not be applied to defeat any provision of the declaration, bylaws, rules, or regulations adopted pursuant to KRS 381.9167 .
  3. In the event of a conflict between the provisions of the declaration and the bylaws, the declaration prevails except to the extent the declaration is inconsistent with KRS 381.9101 to 381.9207 .
  4. Title to a unit and common elements is not rendered unmarketable or otherwise affected by reason of an insubstantial failure of the declaration to comply with KRS 381.9101 to 381.9207 .

History. Enact. Acts 2010, ch. 97, § 15, effective January 1, 2011.

381.9131. Description of units.

After the declaration is recorded, a description of a unit which sets forth the name of the condominium, the recording data for the deed and declaration, the county in which the condominium is located, and the identifying number of the unit, is a sufficient legal description of that unit and all rights, obligations, and interests appurtenant to that unit. The numbering system of units shall be adequate to easily distinguish each unit, including those built at different times.

History. Enact. Acts 2010, ch. 97, § 16, effective January 1, 2011.

381.9133. Contents of declaration.

  1. The declaration for a condominium shall contain:
    1. The name of the condominium which shall include the word “condominium” or be followed by the words “a condominium,” and the association;
    2. The name of every county in which any part of the condominium is situated;
    3. A legally sufficient description of the real estate included in the condominium;
    4. A statement of the maximum number of units which the declarant reserves the right to create;
    5. A description of the boundaries of each unit created by the declaration, including the unit’s identifying number;
    6. A description of any limited common elements as provided in KRS 381.9141 (2)(h), except for those limited common elements specified in KRS 381.9127(2), (4), and (6);
    7. A description of any real estate, except real estate subject to development rights, which may be allocated subsequently as limited common elements, other than limited common elements specified in KRS 381.9127(2), (4), and (6), together with a statement that they may be so allocated;
    8. A description of any development rights and other special declarant rights reserved by the declarant, together with a legally sufficient description of the real estate to which each of those rights applies, and a time limit within which each of those rights must be exercised;
    9. If any development right may be exercised with respect to different parcels of real estate at different times, a statement to that effect together with:
        1. A statement fixing the boundaries of those portions and identifying the proposed order in which those portions may be subjected to the exercise of each development right; or 1. a. A statement fixing the boundaries of those portions and identifying the proposed order in which those portions may be subjected to the exercise of each development right; or
        2. A statement that no assurances are made concerning the boundaries or order in which the exercise of development rights may occur; and
      1. A statement as to whether, if any development right is exercised in any portion of the real estate subject to that development right, that development right must be exercised in all or in any other portion of the remainder of that real estate;
    10. Any other conditions or limitations under which the rights described in paragraph (i) of this subsection may be exercised or will lapse;
    11. An allocation to each unit of the allocated interests in the manner described in KRS 381.9137 ;
    12. Any restrictions on use, occupancy, and alienation of the units;
    13. The recording data for recorded easements and licenses appurtenant to or included in the condominium or to which any portion of the condominium is or may become subject by virtue of a reservation in the declaration; and
    14. All matters required by KRS 381.9135 , 381.9137 , 381.9139 , 381.9141 , 381.9153 , and 381.9169(4).
  2. The declaration may contain any other matters the declarant deems appropriate.

History. Enact. Acts 2010, ch. 97, § 17, effective January 1, 2011.

381.9135. Leasehold condominiums.

  1. A memorandum of lease shall be recorded with respect to any lease the expiration or termination of which may terminate the condominium or reduce its size. Every lessor of those leases shall sign the memorandum of lease, and the memorandum of lease shall state:
    1. The elements of recording for the lease;
    2. The date on which the lease is scheduled to expire;
    3. A legally sufficient description of the real estate subject to the lease;
    4. Any right of the unit owners to redeem the reversion and the manner whereby those rights may be exercised, or a statement that they do not have those rights;
    5. Any right of the unit owners to remove any improvements within a reasonable time after the expiration or termination of the lease, or a statement that they do not have those rights; and
    6. Any rights of the unit owners to renew the lease and the conditions of any renewal, or a statement that they do not have those rights.
  2. After the declaration for a leasehold condominium is recorded, neither the lessor nor his or her successor in interest may terminate the leasehold interest of a unit owner who makes timely payment of his or her share of the rent and otherwise complies with all covenants which, if violated, would entitle the lessor to terminate the lease. A unit owner’s leasehold interest is not affected by failure of any other person to pay rent or fulfill any other covenant.
  3. Acquisition of the leasehold interest of any unit owner by the owner of the reversion or remainder does not merge the leasehold and fee simple interests unless the leasehold interests of all unit owners subject to that reversion or remainder are acquired.
  4. If the expiration or termination of a lease decreases the number of units in a condominium, the allocated interests shall be reallocated in accordance with KRS 381.9113(1), as though those units had been taken by eminent domain. Reallocations shall be confirmed by an amendment to the declaration prepared, executed, and recorded by the association.

History. Enact. Acts 2010, ch. 97, § 18, effective January 1, 2011.

381.9137. Allocation of common element interests, votes, and common expense liabilities.

  1. The declaration shall allocate a fraction or percentage of undivided interests in the common elements and in the common expenses of the association, and a portion of the votes in the association, to each unit and state the formulas used to establish those allocations. Those allocations shall not discriminate in favor of units owned by the declarant.
  2. If units may be added to or withdrawn from the condominium, the declaration shall state the formulas to be used to reallocate the allocated interests among all units included in the condominium after the addition or withdrawal.
  3. The declaration may provide:
    1. That different allocations of votes shall be made to the units on particular matters specified in the declaration; and
    2. For class voting on specified issues affecting the class if necessary to protect valid interests of the class. A declarant shall not utilize cumulative or class voting for the purpose of evading any limitation imposed on declarants by KRS 381.9101 to 381.9207 , and units shall not constitute a class because they are owned by a declarant.
  4. The declaration shall not permit cumulative voting, including cumulative voting for the purpose of electing members of the executive board.
  5. Unless otherwise stated in the declaration, the declarant retains full voting rights to any unit until it conveyed.
  6. Except for minor variations due to rounding, the sum of the undivided interests in the common elements and common expense liabilities allocated at any time to all the units shall each equal one (1), if stated as fractions, or one hundred percent (100%), if stated as percentages. In the event of a discrepancy between an allocated interest and the result derived from application of the pertinent formula, the allocated interest prevails in the absence of error in specifying the allocated interest.
  7. The common elements are not subject to partition, and any purported conveyance, encumbrance, judicial sale, or other voluntary or involuntary transfer of an undivided interest in the common elements made without the unit to which that interest is allocated, shall be void.

History. Enact. Acts 2010, ch. 97, § 19, effective January 1, 2011.

381.9139. Limited common elements.

  1. Except for the limited common elements described in KRS 381.9127(2), (4), and (6), the declaration shall specify to which unit or units each limited common element is allocated. That allocation shall not be altered without the consent of the unit owners whose units are affected.
  2. Except as the declaration otherwise provides, a limited common element may be reallocated by an amendment to the declaration executed by the unit owners between or among whose units the reallocation is made. The persons executing the amendment shall provide a copy thereof to the association, which shall record it after receiving all fees and other costs associated with recording the instrument. The amendment shall be recorded in the names of the parties and the condominium.
  3. A common element not previously allocated as a limited common element shall not be so allocated, except pursuant to provisions in the declaration made in accordance with KRS 381.9133(1)(g). The allocations shall be made by amendments to the declaration.

History. Enact. Acts 2010, ch. 97, § 20, effective January 1, 2011.

381.9141. Plats and plans.

  1. Plats and plans are a part of the declaration. Separate plats and plans are not required by KRS 381.9101 to 381.9207 if all the information required by this section is contained in either a plat or plan. Each plat and plan shall be clear and legible and contain a certification that the plat or plan contains all information required by this section.
  2. Each plat shall contain:
    1. The name and a survey or general schematic map of the entire condominium;
    2. The location and dimensions of all real estate not subject to development rights, or subject only to the development right to withdraw, and the location and dimensions of all existing improvements within that real estate;
    3. A legally sufficient description of any real estate subject to development rights, labeled to identify the rights applicable to each parcel;
    4. The extent of any encroachments by or upon any portion of the condominium;
    5. The location, with reference to an established datum, of any horizontal unit boundaries not shown or projected on plans recorded pursuant to subsection (4) of this section and that unit’s identifying number;
    6. A legally sufficient description of any real estate in which the unit owners will own only an estate for years, labeled as “leasehold real estate”;
    7. The distance between noncontiguous parcels of real estate comprising the condominium;
    8. The location and dimensions of limited common elements, including porches, balconies, and patios, other than parking spaces and the other limited common elements described in KRS 381.9127(2), (4), and (6); and
    9. In the case of real estate not subject to development rights, all other matters customarily shown on land surveys prepared in accordance with standards established pursuant to KRS 322.290 .
  3. A plat may also show the intended location and dimensions of any contemplated improvement to be constructed anywhere within the condominium. Any contemplated improvement shown shall be labeled either “MUST BE BUILT” or “NEED NOT BE BUILT.”
  4. To the extent not shown or projected on the plats, plans of the units shall show or project:
    1. Any horizontal unit boundaries exclusive of elevations, with reference to an established datum, and that unit’s identifying number; and
    2. Any units in which the declarant has reserved the right to create additional units or common elements, identified appropriately.
  5. Unless the declaration provides otherwise, the horizontal boundaries of part of a unit located outside of a building have the same elevation as the horizontal boundaries of the inside part, and need not be depicted on the plats and plans.
  6. Upon exercising any development right, the declarant shall record either new plats and plans necessary to conform to the requirements of subsections (1), (2), and (4) of this section, or new certifications of plats and plans previously recorded if those plats and plans otherwise conform to the requirements of subsections (1), (2), and (4) of this section.
  7. Any certification of a plat or plan required by KRS 381.9125 or this section shall be made by a professional land surveyor, licensed architect, or professional engineer.

History. Enact. Acts 2010, ch. 97, § 21, effective January 1, 2011.

381.9143. Exercise of development rights.

  1. To exercise any development right reserved under KRS 381.9133(1)(h), the declarant shall prepare, execute, and record an amendment to the declaration and comply with KRS 381.9141 . The declarant is the unit owner of any units thereby created. The amendment to the declaration shall assign an identifying number to each new unit created, and, except in the case of subdivision or conversion of units described in subsection (3) of this section, reallocate the allocated interests among all units. The amendment shall describe any common elements and any limited common elements thereby created and, in the case of limited common elements, designate the unit to which each is allocated to the extent required by KRS 381.9139 .
  2. Development rights may be reserved within any real estate added to the condominium if the amendment adding that real estate includes all matters required by KRS 381.9133 or 381.9135 , as the case may be, and the plats and plans include all matters required by KRS 381.9141 . This provision does not extend the time limit on the exercise of development rights imposed by the declaration under KRS 381.9133 (1)(h).
  3. If a declarant exercises a development righ