11 Ky. Op. 412 | Ky. Ct. App. | 1882
Opinion by
Appellant was entitled to one-third of the rents and profits of her husband’s real estate from his death until the assignment of dower. She also had the right to hold the mansion house, yard, garden, the stable and lot in which it stands, and orchard, if there was one adjoining any of the premises aforesaid. But she
As no dower appears to have been assigned to her during the year 1878, no demand made upon her for a division of the land by the guardian of the children, or any effort made by any one to have the land leased or disposed of, she should not for that year be charged the full rental value of either tract of land, but the rental value only of such portions as she actually cultivated, and the value of the actual benefits or profits she received in pasturing her own stock or from others to whom she let the pasturage, after deducting her dowerable share of one-third and the shares belonging to the infant children residing with her.
As the instruction given by the court authorized the jury to find against her 10/21 of the entire rental value of the land, except the mansion house and curtilage, instead of limiting the recovery to the rental value of what she actually cultivated, used and enjoyed. The judgment must be reversed and cause remanded with instructions for further proceedings consistent with this opinion.
