Utly v. Roark

Decided February 26, 1869

Court of Appeals of Kentucky · decided 1869-02-26

<p>Wills — Devise of Land in Fee Simple — Defeasible Contingency. Uncertainty.</p> <p>A legatory clause in a will giving land to another In fee simple will not he defeated by a subsequent provision made defeasible at the death of the legatee on a contingency that never occured and which was void for uncertainty.</p>

Decided 1869-02-26

¶1Opinion of the Court by

Judge Robertson:

¶2The legatory clause of Hobson Brown’s will giving to his wife his land evidently passed to her a fee which a subsequent provision made defeasible at her death only, on -a contingency that never occurred and was 'moreover void for inexplicable uncertainty. And consequently she died seized of the absolute fee simple title which descended to the appellees as her heirs.

¶3The judgment in their favor was, therefore, right on the face of the will, and, therefore, as there is nothing in the record which we can recognize as a bill of exceptions showing either instructions or other evidence than the will itself, the judgment is affirmed. The Chief' Justice dissenting.