185 Ky. 516 | Ky. Ct. App. | 1919
Opinion of the Court by
Affirming.
Thomas F. Smith and his wife, Elizabeth, were married prior to the year 1860. Thomas died intestate in the year 1869. He was the owner of a farm in Barren county of less value than $1,000.00. He was survived by his widow, Elizabeth, and eleven children. A daughter, Elizabeth, died in infancy and her interest passed to her brothers and sisters. Thereafter a son, George, died at the age of twenty-six, and his interest in the land passed to his mother, Elizabeth. From the time of her husband’s death until her death in the month of November, 1916, the widow occupied the farm.
Upon the death of the widow, Elizabeth Richey and others, children of Thomas Smith, brought this suit against H. C. Smith and others, children and grandchildren of the intestate, for a sale of the land and a division of the proceeds. On November 15,1916, the defendant, H. C. Smith filed an answer and counterclaim denying that the plaintiffs and defendants were the owners of fifty acres of the land in controversy, and pleading in substance that his mother, Elizabeth Smith, was the owner thereof by adverse possession, and that said tract passed to him under the will of his mother. On March 12,1917, H. O. Smith filed an amended answer and counterclaim asserting that even if the fifty acres belonged to his father at the time of his death, one-tenth of the interest of his sister Elizabeth passed to him upon her death, and that upon the death of his mother one-tenth of the interest of his brother George also passed to him. On July 7, 1917, H. O. Smith tendered a second amended answer and counterclaim in which he set up a claim for improvements. The court declined to permit this pleading to be filed. On final hearing, H. O. Smith’s claim that he was the owner of all the land was rejected, but in addition to his interest as heir at law of his father, he was adjudged an interest in the land as heir at law of his sister Elizabeth, and another interest in the land as a devisee of his mother, who inherited the interest of his deceased brother, George Smith. It was further adjudged that the land could not be divided without impairing its value, and that it be sold for the purpose of dividing the proceeds- among the parties to the action. H. C. Smith appeals.
There is no merit in the contention that the widow and her children were not entitled to a homestead in the land in question because her husband acquired the property and their marriage took place prior to June 1,1866, when the homestead law went into effect. No question of debts incurred prior to the passage of the act is presented. The whole theory of the law with relation to homestead is based upon the idea that as a matter of public policy, for the promotion of the prosperity of the state, and to render independent and above want each citizen of the government, it is proper he should have a home where his family may be sheltered, and live be
The widow continued to occupy the whole of the land, which was worth less than $1,000.00, until her death which occurred forty-seven years after her husband’s death. Such occupancy will be treated as an election by her to hold the land as a homestead. James, et al. v. Reeves, et al., 185 Ky. 406; Campbell v. Whisman, 183 Ky. 256, 209 S. W. 27. Under these circumstances, her occupancy was amicable to her husband’s children, and was not rendered adverse by the mere fact that she referred to the land as her own, or sold certain trees, from the land. Bates v. Adams, 182 Ky. 100, 206 S. W. 163; May v. C. & O. Ry. Co., 184 Ky. 493; Bush v. Fitzgerald, 125 S. W. 716. That being true, the widow did not acquire title by adverse possession to the fifty acres in controversy, and no title passed to H. C. Smith by virtue of her will.
But it is insisted that the court erred in not permitting the second amended answer and counterclaim to be filed. After the evidence had already been taken, this pleading was offered for the purpose of conforming to the proof. It was alleged in substance that the defendant, H. C. Smith, moved to the lands of his mother about nineteen years before her death under a contract by which she agreed that, if he would care for her during the remainder of her life, she' would give him the place for his services; that plaintiffs knew of the contract he had with his mother, and with such knowledge stood by and permitted him to spend his time and money in improving the land, cleaning it up; building new fences, barns and outhouses, and repairing the residence; that they made no complaint and offered no objection to his living upon said place with his mother under said contract, and that they were estopped to recover any part of the land until they compensated-him for the enhanced
Since the allegation that the other children knew of defendant’s contract with his mother did not conform to the proof, and since the only allegations that did conform to the proof were not sufficient to charge the remaindermen with the cost of the improvements, the trial court did not err in refusing to permit the second amended answer and counterclaim to be filed.
Judgment affirmed.