199 Ky. 744 | Ky. Ct. App. | 1923
Opinion of the Court by
A f’firrning
Prior to December, 1913, William Isgrig died intestate domiciled in Bourbon comity, leaving a large estate, consisting of both real and personal property. He had two children, a son and a daughter. About that time a suit to settle the estate of William Isgrig was commenced by the administrator and the two children. There were several questions involved, but the -only one pertinent here was between the son and daughter, in which the son sought to have his sister charged with rents received by her from a 197-acre farm averred to have been owned by his father for a long number of years -and used by the daughter, as advancements. Issue was sharply drawn, evidence taken and trial had, resulting in favor of the daughter. The s-on appealed from the judgment to this court and it was affirmed. Shortly after the mandate was filed in the lower court the action, -which resulted in the judgment from which this appeal is prosecuted, was filed for new trial of the old settlement suit.
The new case is prosecuted under section 518 of the Civil Code and is based upon newly discovered evidence. The plaintiff in this action, William Sweeney Isgrig, appellant in the old suit, avers in his petition that since the filing of the mandate in the old settlement -suit he has discovered for the first time that his sister, appellee Jacoby, admitted in writing some years before the conclusion of the old suit that' she was not the owner of the tract of land around which that litigation revolved, but that her father, William Isgrig, was the owner thereof
“On or about July 15, 1909, the said Emma Is grig’ Jacoby filed in this court with the clerk thereof her petition in equity against the defendant, Lyle Jacoby, and the First National Bank of Paris, Ky., in which she alleged £that she owns in fee simple the undivided half of a certain tract of about 197 acres of land lying in Bourbon county, Kentucky, adjoining the lands of George Wagoner, E. F. Clay, Jr., Noah Spears’ heirs, Mrs. Sallie Joyce, the Ward estate, etc., and her father Wm. Isgrig, is the owner in fee simple of the remaining undivided half of said land, and plaintiff states that since her father became the owner thereof, he has allowed plaintiff the use thereof and the proceeds and profits thereof from year to year, and is still allowing plaintiff the use thereof and the proceeds and profits thereof without rent other than the payment of taxes and repairs.’ ”
This was in 1909, and she had been in possession of the lands a number of years before that. Appellant avers in his petition that he did not know of the existence of this suit nor the averment therein, contained and did not and could not have used the same on the trial of the set
In the original suit the parties directed their evidence to the issue of whether William Isgrig, father of appellant and appellee, made a parol gift of the land to his daughter some time prior to 1909, or whether he merely gave the rents and profits of the land to his daughter. The son insists he did not give her the land but only gave her the usufruct. In order to determine this question several witnesses were called en each side. Appellee, Mrs. Jacoby, testified that her father gave her the land by parol and that she owned and claimed it at the time of the commencement of the settlement suit. She called several other witnesses to corroborate her. The son testified to facts which indicated that his father did not give the lands to his sister and called witnesses to corroborate him. The evidence being thus made up and submitted a judgment was rendered in favor of the daughter.
The evidence now relied upon for new trial is in a sense cumulative. In other words, it goes to prove what appellant attempted to establish in the settlement suit.
Tbe chancellor bad all tbe facts before him. Upon these facts be found against appellant. His finding on tbe facts must be given some weight. To do so sustains bis judgment.
Judgment affirmed.