189 Ky. 32 | Ky. Ct. App. | 1920
Opinion op ti-ie Court by
Reversing.
Anna M. Demarest, the former wife of C. Agnew Demarest, was the owner of a house and lot in the city of Louisville worth about $7,000.00, which was occupied as a home by her and her husband and their two infant children. Upon the death of Mrs. Demarest, who owed no debts, she left a will by which she devised the property in fee simple to her husband, C. Agnew Demarest. The husband and the two children continued to occupy the property as a homestead for several years, when he married again and moved to Chicago, where he purchased another home, which is now occupied by him and his family, including the two children by his first wife. Wishing to dispose of the Louisville property, he entered into a written contract with E. S. Allen, by which he sold it to him for $7,000.00 cash, with the agreement that the title should be g*ood and merchantable. Allen refused to comply with the contract of sale on the ground that each of the infant children of the former Mrs. Demarest has a homestead right in the property until he reaches the age of twenty-one years.
An agreed case for specific performance of the contract based on the foregoing facts was submitted to the chancellor. Allen’s contention was sustained and specific performance was denied. Demarest appeals.
The chancellor’s decision was based on the ruling in Schanbel v. Schanbel, 108 Ky. 536, 56 S. W. 983, 22 Ky. L. Rep. 231, holding that where the widow fails to renounce the provisions of the husband’s will, devising to her his entire estate subject to the payment of his debts, she cannot claim the homestead as against
Judgment reversed and cause remanded with directions to enter judgment decreeing specific performance of the contract.