284 S.W. 1110 | Ky. Ct. App. | 1926
Reversing.
This is the third time this case has been before this court, and as many of the facts connected with this litigation are well stated in the former opinions, we shall not repeat them here, but shall refer the reader to
Mrs. Cline had eight children, four boys and four girls. Of these, seven survived her. One of her children, Myra Cline Curnutte, died before her mother, and was survived by two children, Watt Curnutte and Perry Curnutte. It was the purpose of Mrs. Cline to divide her *494 property equally among these children, giving to each 1-8 thereof, and to Watt and Perry Curnutte the 1-8 that would have gone to their mother. The conduct of some of these children relative to this division is not commendable, and they gave their mother a great deal of trouble about the division.
In the first case that came to this court, we directed that the deeds which had been made to J.S. Cline, W.O.B. Cline, Jacob P. Cline and Maude Cline Yost should be set aside. These deeds which we ordered set aside will be referred to as the "deeds of 1916." Mrs. Roxie Cline Preston and Mrs. Ella Cline Richards had not then accepted the deeds made by their mother, else those would have been ordered set aside also. After they had been made and just before the death of Mrs. Cline, these same parties had induced her to execute to them other deeds which will be referred to as the deeds of 1920. These deeds amounted to nothing more than the ratification of the deeds of 1916.
After Mrs. Cline's death, one of her sons, A.D. Cline, who had never received anything, and the guardian of the Curnutte children brought a suit to settle her estate, alleging in this suit that many advancements had been made to her various children, and asking that the amounts of those advancements be fixed and determined, and her estate settled. Afterwards, this same son and these Curnutte children brought a third suit in which they sought to set aside the deeds of 1920. After the mandate in the first case had issued, the trial court entered an order in that case setting aside the deeds of 1916. For some reason, the trial court declined to refer the matter to a commissioner to determine the amount of advancements, and in the case reported in
"On that point it is enough to say that the same influence that induced the execution of the deeds of 1916 could have been responsible for her acquiescence in the improvements and brought about the attempts at ratification in 1918 and 1920; and here again her alleged acts were wholly inconsistent with her known purpose to make an equal distribution of her estate, which fact of itself indicates that the later acts were not performed of her own free will."
"On the return of this case, the trial court will refer it to a commissioner with directions to take proof and ascertain the extent and value of the real and personal estate of Martha Cline remaining at her death. The land embraced in the 4 deeds ordered set aside that has not passed into the hands of innocent purchasers is a part of Mrs. Cline's estate. To the extent that it has it is to be treated as an advancement to the child through whom it so passed. The court will also direct its commissioner to take proof and report the present value of the real and personal property of Martha Cline and the value of all gifts, conveyances or advancements of real or personal property made by Mrs. Cline to any of her children, and as said in our opinion in the first case, these children should be credited with the expenditures made by them on the several lands conveyed to them. In arriving at these values the court will direct that the proof he taken and the estimates made relative to the value of these lands in 1916, or when the advancements were made. The court will permit evidence to be heard about what any of these lands have been sold for since 1916, not that such sales fix the value at all, but the evidence of these sales made after 1916 shall be admitted for the purpose of throwing light upon the value of these lands in 1916.
The advancements made by the deeds of 1916 we shall term "the extraordinary advancements" and any real or personal property theretofore given by her to any of her children with a view to apportion or settlement in life we shall term "the ordinary advancements." The *496 court will add to the extraordinary advancements interest from the date made to the date of its judgment. Interest may be computed for the purpose of equalizing distributees.
See Royce v. Royce, 17 Ky. L. R. 1403, 34 S.W. 1068. The court will add to the ordinary advancements interest from the date of the death of Martha Cline to the date of its judgment. The sum of each child's advancements with, the interest so added shall be treated as what each child has received. The sum of these several advancements, with interest added, and the present value of the real and personal property of Martha Cline is the value of her estate, and in making distribution, the children who have received advancements shall receive nothing further until the other heirs are made equal with them.
The judgment is reversed.