78 Ky. 313 | Ky. Ct. App. | 1880
Lead Opinion
Delivered the opinion of the court.
In the year 1854 Jacob Henry, a resident of the county of Bath, died, leaving surviving him his widow and two. children, to whom he devised a part of his estate. He had been previously married, and had other children, whose interests are not affected by this litigation. He left a last will, by which he devised to his widow ‘ ‘ the use and profit of the balance of my lands and negroes, except as hereinafter provided, during her natural life, for the purpose of her support' and education of her two children, Jacob and Eliza, <Ire., ......and, after her death, to Jacob and Eliza in fee;, and for the purpose of aiding her in the support of herself’ and those children named, I also give and bequeath to nay-said wife my household and kitchen furniture, four workhorses, wagon, gear, farming utensils, &c......In case my wife should marry, then the land shall be divided into, three equal parts, one of which, including the dwelling-house, shall be for the use of my wife as above, the other-two allotted to her two children, Jacob and Eliza, or, when Jacob arrives at maturity or either of the children marry and. desire a division, in that case, a division into three parts, as.
The widow married William Sharpe in the year 1857, and he died in October, 1864. There was no division of the land at or during her marriage with Sharpe, but a partition was. made in the year 1869. The quantity allotted the widow and. her two children was 88 acres each. In the year 1865, after the death of Sharpe, the second husband, the widow, with a view of recovering from Sharpe’s estate moneys alleged, to be due her daughter Eliza, qualified as her guardian, with the present appellant and her son, Jacob Henry, as her sureties on the guardian’s bond. She collected $1,615 for her ward from this estate. Her daughter lived with her on the-land devised until her marriage with Spratt, in the year 1875. She made two settlements in the county court of her accounts as guardian, one in the year 1872 and the other in the year 1875, and; by the last settlement, is shown -to be-■indebted to her daughter in a large sum — say $3,336. In the meantime the mother, who was guardian, and her son, one of the sureties, became insolvent, and Spratt and wife-are attempting, in this proceeding, to coerce payment of the-appellant, the solvent surety.
The surety alleges in his answer a failure on the part of the guardian to apply for or ask the credits to which she was. entitled as against her daughter, and that this refusal or failure on her part resulted from a desire to enlarge her liability, that it might be collected from him. The surety claims that the ward should be charged with her board and clothing furnished.by the mother, if the latter is held accountable for the rents, and gives in detail many other items, with which he says the guardian should have been credited-
The only real estate the guardian owned was the dower in the estates of her deceased husbands — eighty-eight acres in her first husband’s lands, and about fifty acres in the lands of Sharpe. She had purchased the interest of her son; but this was on a credit, and seems never to have been paid. Now, in a controversy between the mother and daughter, in regard to the rents of the daughter’s land, worth some $250 per annum, the chancellor, would hesitate long before he would require the mother to board and clothe the •daughter, and yet hold her accountable for the rents. The mother, under such a ruling, with an income of four or five hundred dollars per annum, is compelled to pay, if no other ■expenditure was incurred for the daughter, the full value of the rent of the ward’s land, and made to expend her entire income for the support of herself and children. Conceding, 'however, the force of the argument addressed to the court helow, and made the basis of the judgment rendered, and still it seems to us that the equities of this case are with the surety, and the appellees presented no claim entitling them to a judgment.
The will of the father of Mrs. Spratt evidences an earnest desire on his part that his widow and his children should remain together as long as possible, and with a view of enabling the wife to support and maintain herself and the two ■children, he devises her the entire land, the proceeds of
His object was, that the children should be maintained as well as the mother, and that no one else should enjoy the fruits of his labor. That the children were raised and maintained on this farm, by the mother, until her marriage with Sharpe, is not controverted, and that they continued to be supported and maintained during the life of Sharpe is also conceded; and that the daughter remained with the mother-after the death of Sharpe, on the same place, until her marriage with Spratt, where they were all living at the institution of this action, are facts also appearing from the record. And although the land was divided, if the children were raised and maintained on the same land, and in the same manner as contemplated by the will, why should the chancellor enlarge the liability of the wife by holding her to an account that would impoverish her and her sureties, and enrich the ward ? It is manifest that the mother had the right to dispose of all the profits from the property devised to the support of herself and children, and in the opinion of the testator it would require the entire income to support the family. There were only 264 acres in the tract, and when charging such an estate with the burden of supporting the widow and of educating and maintaining the children, it is-reasonable to suppose that the entire income would be consumed.
The stepfather and the mother supported the children until Sharpe’s death, and the mother until her daughter’s-marriage. The object of the testator in requiring a division of the property, in the event the wife should marry, was, that the interest of each child might be applied to his or her support; and if the mother has done this, although she again
The judgment is reversed, with directions to dismiss the petition.
Rehearing
To a petition for rehearing—
delivered the response of the court.
We have again carefully considered the record in this case, and feel satisfied that, under the provisions of the will of Jacob Henry, his widow, whether acting in the capacity of guardian or otherwise, could only be made liable for so much of the profits of the land as was sufficient to support and educate her two children. Having done this, her liability terminated, and there is no reason for holding her .•surety responsible. The attention of the chancellor was not called, perhaps, to the provisions of Henry’s will in determining this question. As said in the former opinion, the use of or rent of the land has been applied as the testator ■desired, and the widow or her surety cannot be held responsible to a greater extent.
Petition overruled.