Bank Of Powhattan v. Rooney

72 P.2d 993 (1937)

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Nature of the Case

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Facts

P is the assignee of a judgment rendered in favor of the Bank (P) against D. It is a valid judgment and it is unsatisfied. Hugh Rooney, the father of D, died testate in Nemaha county. He made a cash bequest and various devises of real estate to his children. He devised to D a life estate in forty acres of land in Brown county, with the provision that after the death of D his interest should descend to and become the property of his heirs. By another provision he devised the residue of his estate, share and share alike, to his children, naming them. The ninth paragraph of the will was as follows: 'NINTH: It is my will that any of the beneficiaries under this will shall have the privilege of selling their interest in lands bequeathed to them to any other beneficiary at any time, but shall not sell to an outsider until three (3) years after my death.' P caused an execution to be issued and the sheriff levied execution upon the right, title, and life estate of D in the land in which he had been given by his father's will. A sheriff in another county levied upon the interest of D in certain real estate in which D had an undivided one-eighth interest under the residuary clause in his father's will. The real estate was duly advertised for sale. Prior to the date of the sale, one of the executors of the estate of Hugh Rooney filed a motion staying the sale of the real estate in that P could not sell the interest of D by the terms of the will for a period of three years, which would be May 7, 1939. The sales were enjoined. P appealed.