Howland's Admr. v. Harr

| Ky. Ct. App. | Nov 15, 1906

Opinion by

Chief Justice Hobson

Reversing.

James Howland and Rachel C. Pancake were married in December, 1899. Mrs. Pancake, ait the time they were married, was a widow with five children. Four of them were infants who went with her to How-land’s home, and lived there with him until he died on May 11, 1902. After Howland’s death John W. Collins qualified as> the administrator of his estate and subsequently the widow, who had intermarried with Jonas Harr, brought this -suit against the administrator charging- that there had been set apart to her various articles of personal property as the widow of the decedent, but that the appraisers failed and refused to set apart to her the sum of $50 each for the four infant children living with her before the death of the decedent, at the time of his death, and at the time the appraisment was made. The court adjudged her the relief sought, and the administrator appeals.

The decedent had children of his own by a former marriage, but he had no children by his wife Rachel. The children living in the home were her children by Pancake, her former husband. The question to be determined is whether the statute applies to any other children than those of the decedent. It is in these words: “The following list of articles are exempt from distribution and sale and shall be set apart to the widow or infant child or children by the appraisers of the estate of an intestate, to-wit: * * * A sufficiency of provisions, including breadstuff s, to sustain the widow 'and infant children residing with her one year; and if there is not a sufficiency of provisions on hand for that purpose, then so much of the live stock suitable for that purpose and of the growing crop, if any, as may be necessary to supply the deficiency; and, if not on hand, other property or money in lieu thereof not exceeding fifty ($50.00) dollars, for the support of the widow and each infant child living with her.” The statute deals with the estate of -an intestate, and when it uses the words, “the widow or infant child or children, ’ ’ it refers to the widow and the infant child or children of the intestate. It no more refers to the infant child er children of another person than to the widow of another person. The plain purpose of the statute is to make an allowance to the widow and infant child or children of the intestate out of his property in addition to what they otherwise receive. The statute is under the head of descent and distribution. ' It provides how the real estate shall descend, nnd then provides that the personalty shall be distributed, with certain exceptions, among the same persons and in the same proportions as the real estate is directed to descend. It was not contemplated by the statute quoted that a part of the personal property of the intestate should go to strangers to his blood. Though the stepchildren were members of Howland’s family while he lived, they were no more entitled to the benefit of this provision of the statute at his death than an apprentice would have been who was living in his family, or a ward whom he was taking* ■care of as a member of his family.

, Judgment reversed, and cause remanded for a judgment dismissing the petition with cost.