| Ky. Ct. App. | Jan 30, 1917
Opinion of the Court by
Affirming.
On January 31st, 1916, C. E. Ellis died intestate, a resident of McLean county. At the time of his death he was the owner of certain personal property and of several tracts of land. His widow, Amanda J. Ellis, waived her right to qualify as administratrix, and on her motion T. E. Ellis and C. W. Ellis, sons of the intestate, were -appointed administrators.
On February 21st, 1916, Amanda J. Ellis, the widow of the intestate, together with C. W. Ellis, T. E. Ellis, Mary N. Bell, S. C. .Ellis and C. G. Ellis, and their respective husbands and wives, filed suit in ’the McLean county court against Julia Clarke, Yina Short and Sallie Plain, and their respective husbands, to have dower allotted to Amanda J. Ellis, widow of the decedent, and the remainder of the land partitioned among his eight children. On March 6th, 1916, Julia Clarke and the other defendants in said action filed their answer, controverting certain allegations of the petition and alleging that during his lifetime the decedent, C. E. Ellis, had made large advancements to T. E. Ellis, S. C. Ellis, C. G. Ellis, C. W. Ellis and Mary N. Bell, and that said children were not entitled to any portion of the land or personal estate of C. E. Ellis until the other children were equalized. At the same time, they.
On March'1st, 1916, Julia Clarke and her husband, J. W. Clarke, Vina Short and her husband, H. R. Short, and Sallie Plain and her husband, E. P. Plain, all of whom were defendants in the suit filed in the McLean County Court, brought suit against the plaintiffs in the latter action and T. E. Ellis and C. W. Ellis, administrators of the estate of C. E. Ellis, to have T. E. Ellis, C. G-. Ellis, C. W. Ellis, S. C. Ellis and Mary N. Bell charged with advancements and for a division of the same land described in the suit for partition in the county court, and for a settlement of the accounts of the administrators. The petition alleged that the land could be divided without materially impairing its value; that the decedent left a large amount of personal property, the exact amount of which the plaintiffs were unable to state, but that the same had come into the hands of the administrators and they had not yet made any settlement. The petition also alleged that plaintiffs were not advised as to the amount of debts, if any, that the decedent owed at the time of his death. It was further alleged that the defendants above mentioned had received large advancements, and that in the settlement of the estate they should be charged therewith so that the estate could be equitably and equally divided among the parties, according to their respective interests. The petition concluded with the prayer that the case be referred to the master commissioner to ascertain and report the amounts of the several advancements made to the defendants, and to make settlement with the administrators. On March 20th, 1916, the defendants, Amanda J. Ellis and others, demurred to that portion of the petition seeking to have the case referred to the master commissioner to settle the estate of C. E. Ellis, and the demurrer was sustained. On March 21st, the defendants filed a plea in abatement, based on the pendency of the suit in the county court which was thereafter transferred to the circuit court. The circuit court sustained the plea in abatement and entered an order dismis sin™ the petition. Plaintiffs appeal.
Por the purpose of convenience we shall refer to the suit originally brought in the county court and there
Judgment affirmed.