Payne v. Johnson's Ex'ors
Court of Appeals of Kentucky
Case 30 — PETITION EQUITY APPEAL FROM PAYETTE CIRCUIT COURT. 1. The complex conveyances creating the liens to secure the payment of the notes sued on are to he regarded as mere mortgages. 2. An instrument will not he treated as the execution of a power unless the intention to execute is apparent and olear, so that the transaction' is not fairly susceptible of any other interpretation.
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Case 30 — PETITION EQUITY APPEAL FROM PAYETTE CIRCUIT COURT. 1. The complex conveyances creating the liens to secure the payment of the notes sued on are to he regarded as mere mortgages. 2. An instrument will not he treated as the execution of a power unless the intention to execute is apparent and olear, so that the transaction' is not fairly susceptible of any other interpretation. (Blagge v. Miles, 1 Story, 426.) 3. A power is not an estate and has none of the elements of an estate. (18 Am. and Eng. Ency. of Law, 881; Jones v. Clifton, 101 U. S., 225.) 4.'The power was not executed or…
1Opinion of the Court
JUDGE PRYOR
delivered the opinion or tiik court.
Mrs. Sally Howard "Woolley died in the county of Payette, leaving a large real and personal estate which she devised to her children. The present litigation originated from the sixth clause of her will, which reads as follows:
“ Sixth. It is my will that my executors and trustees, after the .payment of my debts and settlement of my estate,, divide or cause to be divided all the rest and residue'of my estate, real, personal or mixed, into equal portions, for the purpose of making just and equal partition among my children, and their descendants;…
2Cases cited3 opinions
- Blagge v. MilesU.S. Circuit Court for the District of Massachusetts · 1841
- Funk v. EgglestonIllinois Supreme Court · 1879
- McCullough's Adm'r v. AndersonCourt of Appeals of Kentucky · 1890
3Cited by18 opinions
- Pen-Ken Gas & Oil Corp. v. Warfield Natural Gas Co.Court of Appeals for the Sixth Circuit · 1943
- Trustees Presbyterian Church v. MizeCourt of Appeals of Kentucky · 1918
- Greenway v. WhiteCourt of Appeals of Kentucky · 1922
- Morffew v. S.F. & San Rafael R.R.California Supreme Court · 1895
- Susanne De Charette v. St. Matthews B. T. Co.Court of Appeals of Kentucky (pre-1976) · 1926
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