Henry v. Brown

99 Ky. 13 | Ky. Ct. App. | 1896

JUDGE LEWIS

DELIVERED THE OPINION OE THE COURT.

Mary M. Henry died in 1879 intestate leaving ber husband. Thos. Henry and Mary'T. Henry, their only child, who; however, died in 1880, being then less than two years old. Thos. Henry having again married, died in 1893, leaving Abie, his widow, and three children by her, Luther, Amelia and Stella Henry.

Appellees, Lidia E. Brown and others, mother, brothers and sisters of Mary M. Henry, brought this action, after the death of Thos. Henry, against Abie Henry, his widow, and three children mentioned, to recover a tract of land containing about seventy-two acres, of which said Mary M. Henry died owner.

The right of appellees to recover the land does not seem to be contested, but appellants complain of so much of the judgment as dismiss their counterclaim for value of improvements put on the land by Thos. Henry while he occupied and used it as tenant by curtesy.

It has been often and distinctly held by this court that a tenant for life can not lay out money in building on the land and charge it on the estate in remainder or make it a personal charge against the remaindermen. Nor does it seem to make any difference that he made the improvements upon the false assumption that he had absolute title to the property. (See Johnson, &c., v. Stewart, 8 Ky. Law Rep., 857, and other cases there cited; also Nineteenth and I. S. Pres. Church v. Fithian, 16 Ky. Law Rep., 591.)

The circumstances of this case do not make it a proper exception to that general rule, but rather serve to illustrate the wisdom of it. The improvements are, in character and value, not suited or in proper proportion to the condition and intrinsic value of the land, but payment for them would require a sale of the whole unless the owners, some of whom are married women and others infants, should raise the money for that purpose from other sources.

The ground upon which the appellants base their claim is that Thos. Henry, the life tenant, in good faith believed, am made the improvement in the belief, he was absolute owner of the land.

The court can not give credit to such alleged belief unless there appears to have been a reasonable ground for it. In this case there was no foundation whatever for that belief because the statute provides plainly that, if an infant dies without issue, having title to real estate, derived by gift, devise or descent from one of his parents, the whole shall descend to that parent and Ms or her kindred, and no attorney would, if consulted, have advised him that he had any other than estate for life in the land.

Judgment affirmed.