Low v. Ramsey

135 Ky. 333 | Ky. Ct. App. | 1909

Opinion of the Court by

Judge Carroll

Affirming.

Mrs. Mary L. Low died, after making lier last will, which was probated in January, 1888. By this will the testatrix gave her son, Wiatt Low, all of her personal and real estate, declaring that he should pay $1.00 to each of her children, viz., Mary E. Jordan, Harry, Josie, Aaron, Elgie, and Samuel. The balance of her estate, both real and personal, she devised and bequeathed to him “with the understanding that he is to take and raise my children Harry and Josie until they are 15 years old.” At the time the testatrix died, Josie Low was between seven and eight years old. Shortly after the probate of the will Wiatt Low sold the real estate devised to him to James Ramsey, and moved out of the state, taking with him Harry Low. Ramsey remained in possession of the land from the time he bought it from Wiatt until his death in 1908, when it descended to Ms widow and cMldren, the appellees herein, In 1908 Josie brought this suit against the Ramsey heirs, charging that Wiatt Low immediately after the death of the testatrix abandoned her, and did not at any time provide her with food, clothing, money, or property of any sort. She alleged that she was entitled to a lien on the land for the reasonable cost of her care and support from the time of her mother’s death until she became 15 years of age, and that the reasonable cost of caring for and supporting her during this period would be $1000.She further alleged that when Ramsey bought the land from Wiatt he had actual and constructive knowledge of the contents of the will. She asked that she be adjudged the lien on the land, and that it be subjected to the payment of her demand of $1,000. The lower court sustained a general demurrer to her petition as amended, and, declining to plead further, her action was dismissed, and she appeals.

In our opinion the provision in the will charging Wiatt Low with the duty of caring for Josie and Harry until they were 15 years old created a lien upon the land in their favor and for this purpose, and as the will was put to record the vendee of Wiatt was charged with notice of its provisions and held it subject to the liabilities imposed upon Wiatt.

It is insisted by counsel for appellant that the provisions in the will imposing upon Wiatt the duty of supporting and caring for these children was either a condition precedent to the vesting of the devise in him, or a condition subsequent, that by his failure to perform forfeited the estate; but in this view we do not agree. Giving to the provision in the will the same effect that was given to similar provisions in the wills construed in the cases of Pearcy v. Greenwell, 80 Ky. 616, 4 R. 587 and Bryant v. Dungan, 92 Ky. 627, 18 S. W. 636, 13 R. 841, 36 Am. St. Rep. 618, we hold, as did the court in Pearcy v. Grenwell, that Wiatt took the estate subject to the charge upon it in favor of Harry and Josie.

Assuming’ then that it was the duty of Wiatt to support and care for these beneficiaries, .the question remains whether or not the appellant has not surrendered her claim by the long delay before attempting to enforce it. Her cause of action first accrued'when Wiatt failed to furnish her support, and her full cause of action was perfected when she became 15 years of age. She might then, under the facts stated in the petition, have recovered everything that was due her under the will; but, as she was an infant when her right accrued, she had the same length of time after becoming of age to bring the suit that she would have if she had been of age when her cause of action accrued — section 2525 of the Kentucky Statutes, reading: “If a person entitled to bring any of the actions mentioned in the third article of this chapter, except for a penalty or forfeiture, was, at the time the cause of action accrued, an infant, * * * the action may be brought within the like number of years after the removal of such disability, * * * that is allowed to a person having-no such impediment to bring the same after the right accrued.”

The next question is: How many years did she have after becoming of age to bring the action? Section 2515 of the Kentucky Statutes provides in part that “an action upon a contract not in writing signed by the party * # # shall be commenced within five years next after the canse of action accrued,” and we have no question that this statute applies. The contract attempted to be enforced was not signed by Wiatt. He merely accepted the provisions of a will that imposed upon him an obligation. The undertaking to support and care for appellant was assumed by Wiatt as a personal obligation when he took the devise, and the mere fact that the acceptance of the devise charged the property with the liability undertaken by him does not have the effect of extending the time in which an action to enforce it may be brought beyond five years. This point was adjudged in Collings v. Codings, 92 S. W., 577, 29 Ky. Law Rep. 51. In that case Elisha Codings conveyed to his daughter certain lands in consideration of her agreeing to pay specified debts then owing by Codings. In the course of the opinion the court said: “While it is true the deed imposed on the grantee the payment of the debts named in it, which became thereby a lien on the land in favor of the respective creditors to whom owing, it was an express assumpsit, barred by limitation after five years, so far as the grantee was concerned, although as between the original debtor, E]isha Codings, and his creditors, the debts may not have been b'arred. When the debts became outlawed, so far as they affected 'the grantee, the lien was likewise discharged. It was not competent for Elisha Codings and his creditors by any subsequent agreement between themselves to prolong' the lives of these debts so as to affect Mrs. Alloway, the grantee of the land without her consent.”

As the claim of appellant is barred by the statute, can this defense be presented by a general demurrer? The rule is that the statute of limitations must loe pleaded, unless the petition shows not only a sufficient lapse of time hut the non-existence of any ground of avoidance; hut when the petition shows that the action is barred, 'and that plaintiff is not within any of the exceptions contained in the statute which saved his right to sue, the question may' be raised by demurrer. Stillway v. Leavy, 84 Ky. 379, 1 S. W. 590, 8. Ky. Law Rep. 321. The only relief sought is the subjection of the land in the hands of the appellees to the payment of appellant’s claim. There is no averment that the appellees in any manner or form assumed the payment of appellant’s claim or any part of it. The petition does not seek any relief against the appellees personally, and so it follows that she could not be entitled to any of the exceptions contained in the statute of limitations that would save it from running against her. Under these circumstances we think the question that the claim was barred by limitation could be raised by demurrer.

Wherefore the judgment of the lower court is affirmed.