180 Ky. 790 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming.
This action was instituted by Laura Hays, widow, against Major- Hays, her uncle, in the Lawrence circuit court, for a division of a certain tract of land supposed to contain about eighty to one hundred acres. The petition alleges that the plaintiff, Laura Hays, is the owner of one-tenth undivided interest in the said tract of land and that Major Hays owns nine-tenths thereof. It does not allege that the tract is susceptible of advantageous division. By answer Major Hays denies that Laura Hays is the owner of a one-tenth undivided interest, or any interest whatever, in the tract of land, and asserts ownership of the entire tract in himself. He avers that he is one of ten children of John Hays, deceased, who left a considerable fortune to his' children and grandchildren, of whom Laura Hays is one of the grandchildren. John Hays left a will disposing of his property. He owned this particular tract -of land and resided upon it. It is alleged that upon this tract is a large nine-room brick house. By the will this tract, the home place, was given to the widow during her life and then to the children in equal portions. After the death of the widow a suit was instituted to settle the estate of John Hays, deceased, to which action both Laura Hays and Major Hays and all the children of John Hays, deceased, were parties, plaintiff and defendant. In that action, which was prosecuted to judgment, it was ordered and adjudged “that the executors of the estate of John Hays, deceased, distribute among the heirs of John Hays, deceased, the sum of $33,400, to be distributed in accordance with the will of the said John Hays as probated in the county court as follows: To Laura Hays one thousand dollars, . . . Major Hays . . . thirty-six hundred dollars; that said executors shall make said distribution on or before the 17th day of the present term of the court. . . -. It is ordered and adjudged
Before the first day of June, 1916, the heirs gathered upon the premises at the home place for the purpose of publicly selling the tract of land now in controversy, and the property was offered for sale and both Major Hays and Laura Hays bid for the property, and Major Hays, offering six thousand and fifty ($6,050) dollars, the highest price bid, was declared the purchaser, whereupon* he caused a deed to be. prepared and signed by each of the heirs, except Laura Hays, who refused- to . sign it, claiming that she desired her one-tenth part of the land laid off to her instead of one-tenth of the proceeds of the land, which under the bid of six thousand and fifty dollars would amount to six hundred and five dollars; or if she could not have her portion of the land in kind, then she desired a greater sum than six hundred and five dollars for her one-tenth interest. She asserts that at the time of the sale she and Major Hays had an agreement and understanding that she was to have her one-tenth interest laid off to her in kind, while Major Hays says that no such understanding was reached, but that after the sale was over Laura Hays suggested to him she would prefer having a one-tenth interest in the land laid off to her instead* of a one-tenth of the proceeds of the sale. He says he did not consent to this, but offered to pay her six hundred and five dollars, which she declined to accept.
She did not appeal from the judgment of the Lawrence circuit court, directing a sale of the home’ place in the suit for settlement of the estate of John Hays, nor did she, so far as this record discloses, make any objection or save any exception to that judgment-or order. In that suit for settlement of the estate of John Hays and in which judgment was entered directing a sale of the land now in controversy, this plaintiff, Laura Hays, should have sought a division of the property and an assignment of her share in kind, if she desired that relief, but failing to do so the judgment directing a sale
Judgment affirmed.