82 Ky. 585 | Ky. Ct. App. | 1885
delivered the opinion of the court.
The husband of appellant died leaving her, with several children, in possession of a small farm, which the family had for years occupied as a home. Appellant •applied for and was allotted dower, embracing the residence. No homestead was asked for or assigned. ■She remained with one or more of the children upon the place for some two years, when she rented it by the year and removed to the city of Bowling Green,
By proceeding to have dower assigned and not insisting upon the allotment of homestead, appellant waived any homestead right she may have had, and thereafter held a life estate in the property assigned to her as dower. In this she was entitled to a homestead, not in the right of her -husband’s occupancy and ownership, which she could not have abandoned to the detriment of any infant child, but in her own right as by purchase. The homestead right she held in the dower interest she might abandon as if a fee, so that the whole of. it could be subjected to her debts. But it is immaterial whether she held the place as a homestead derived through the husband or by virtue of her dower interest, since all the children were of age at the time appellant removed to Bowling Green. The only question is, whether there was an abandonment of and a waiver of the homestead right by reason of the removal to and residence in Bowling Green.
Two of the sons testify that after the removal to-Bowling Green the question of going back to the farm was discussed, and that appellant manifested a desire to go if one of the sons would go with her. Upon the other hand are these facts: Appellant was over sixty years of age; her children passed minority ; her sons residing in Bowling Green; more than five years’ residence by her elsewhere; no domestic ties or obligations to take her back; and the testimony of- one witness that she said she had rather live in Bowling Green, and that when she went there she would go • to stay. The circumstances under which appellant returned to the claimed homestead does not strengthen the claim that she had originally intended to return. She waited more than five years, and -then did not return until the property had been sold under execution for debts she had contracted after abandonment.
It is impossible to lay down an absolute rule as to the amount or character of evidence that will be sufficient to establish the fact of waiver or abandonment
We do not think there was error in allowing appellee ■to file an amended answer. The amendment only set up and relied upon the proceeding by appellant in the county court, by which she sought to have dower allotted to her. The existence of these facts were substantially alleged in the petition. In any event it was a matter of discretion with the court below, which •does not appear to have been abused and which does mot appear to have prejudiced appellant.
Judgment affirmed.