159 Ky. 816 | Ky. Ct. App. | 1914
Opinion op the Court by
Affirming.
Marian Hall died a resident of Letcher County about the year 1880 leaving surviving him three children, a son and two daughters. His daughter, Anna, married1 John S. Franklin, and received from her father’s executor a tract of land on Puncheon Fork of Beaver Creek, valued then at $1,500. She and her husband settled on the land soon after their marriage in the year 1898. While they lived there she received from the executor $1,000 or $1,500 in money. This was spent in improving the property and in household expenses. Her husband worked on the farm, which was little improved when they got it, .and from time to time erected improvements upon it. When they had lived there about five years they sold the farm to the Northern Coal & Coke Company for $3,900, which was paid to the hus
Section 2353, Kentucky Statutes, is as follows: “When a deed shall be made to one person, and the consideration shall be paid by another, no use or trust shall result in favor of the latter, but this shall not extend to any case in which the grantee shall have taken a deed in his own name without the consent of the person paying the consideration, or where the grantee, in violation of some' trust, shall have purchased the lands deeded with the effects of another person.”
While it is clear from the record that the two tracts of land in controversy were purchased with the proceeds of the sale of the Puncheon Fork tract, which was the property of the wife, it is equally clear from the evidence that the deeds to these two tracts were taken to the husband with the knowledge and consent of the wife, and that it was a settled purpose on her part that her husband should have her property at her death. They' lived very affectionately together. Her husband had little means when they married, but he was a hard.working, thrifty man. He carried on a logging business and afterwards ran a store. They kept a common purse and what either had belonged to both. She knew how'
It developed in the action that the title to the- Puncheon Fork tract was not in Marian Hall, but in his wife, ■who had died some years before her husband, and was the mother of the three children, he having held the land after her death as tenant by the curtesy, and the children regarding it as his land. They had divided all the property treating it as one estate. If the mother’s estate had been divided between the three children, and the father’s estate had then been divided equally between them, separately from the mother’s estate, they would have come out just as they did. Their-treating all the property as descending from the father simply simplified the division, and in no wise affects the merits of the controversy.
As to the personal property the proof is very unsatisfactory as to what, if any, Mrs. Franklin- owned at her death. But the title to her personal property, if she owned any, vested in her personal representative; and a suit to recover it must be brought by him. The heir can not maintain an action to recover the personal property of the intestate or his interest in it. (Boughner v. Sharp, 144 Ky., 320; Layne v. Clerk, 152 Ky., 310.)
The conclusion we have reached makes it unnecessary for us to pass on the other questions raised.
Judgment affirmed.