74 Ky. 485 | Ky. Ct. App. | 1875
delivered the opinion oe the court.
O. R. Powell died in Kenton County, in 1862, at the advanced age of ninety-four years. He left a large estate, consisting principally of realty, situate in and adjacent to the city of Covington. During his life he had advanced, more or less, to all his children and heirs-at-law. He died intestate, and this suit was instituted to settle and distribute his estate.
By a judgment rendered upon exceptions to the master’s report the questions in controversy were adjudicated. Some of the parties in interest, being dissatisfied, have appealed from that judgment. The principal grounds of complaint in this court are that the law regulating and governing advancements has not been correctly administered.
Out of this last stipulation in the bond a controversy arose between the father and son, the latter insisting that the provision securing the estate to his children as remainder-men had been inserted by and through fraud or mistake.
This controversy was settled in 1849, when the intestate conveyed the thirty acres in fee to Abram.
The master charged Abram’s heirs with the value of the land in 1849, estimating it at the sum of $24,000. They insist that they should be charged with the amount paid for their father’s benefit in 1823; or, if mistaken in this, that they should be charged with its value in 1842, when their father first received the possession and began to enjoy the property.
The law as settled by the case of Hook v. Hook (13 Ben. Monroe, 528) is that advancements shall be estimated at their value when made, and that an advancement secured by deed, but to be enjoyed at a future period, shall be deemed to have been made or given at the time it is made complete by the actual possession and. enjoyment of the property advanced; and in that case it was held that as the father reserved a life-estate in the lands conveyed to certain of his children they should be charged with the value thereof at the time of his death instead of the value at the date of the conveyance, encumbered as they then were with the life-estate reserved.
The first section of the act of 1830 (Stat. Laws, vol. 1, page 784) is as to. this matter substantially the same with sec. 17, chap. 30 of the Revised Statutes, which was in force at the time of the death of the intestate. In construing the act of 1830, in the case of Barber v. Taylor’s heirs (9 Dana, 84) tins court, by Chief-Justice Robertson, said: “A gift of money or other personal property to the husband of the donor’s daughter would, if not otherwise intended, be an advancement to such daughter, though the husband, by wasting or losing it, might prevent his wife from deriving any benefit from it. So land given in franh-marriage to the husband and wife and to the
The doctrine of the decision is that the intention" of the donor to advance his daughter will be presumed from the fact that he conveys to her husband upon the sole consideration of the existence of the marriage relation between them. In this case this presumption is entitled to greater consideration in view of the fact that the Revised Statutes provided that a parent or grandparent could not by mere declaration of his intention exempt one of his descendants from liability for money or property given or devised to him with which the statute made him chargeable. This could only be done by a last will and testament, duly executed, disposing of the whole of the testator’s estate, real and personal. (Clarkson v. Clarkson, 8 Bush, 655; Clarke v. Clarke, 17 B. Monroe, 708.)
The statute does not so provide, and its language seems to rebut any such inference or implication. The provision of the Revised Statutes is, “Any real or personal property or money given or devised by a parent or grandparent to a descendant shall be charged to the descendant or those claiming through him in the division and distribution of the undevised
The descendant to be charged is the person to whom the gift or devise has been made, or a descendant claiming through such person. A descendant to whose child a gift or devise may have been made does not fall within the language of the statute. This is admitted • but it is argued .that the same liberal rule of construction, through which the words of the law are held to include gifts or devises to sons-in-law who are not descendants of the donor or testator, will also make them include gifts or devises made to the children of living descendants who are heirs or presumptive heirs of the donor or testator. There are essential differences between these two classes of persons. For many purposes the law treats the husband and wife as one person. The husband generally has the legal right to reduce to possession and make himself the absolute owner of all personal property given or devised to his wife; and when the right to take by the courtesy has once attached he can secure to himself a life-estate in all lands given or devised to her. Besides this, the husband is under a legal obligation to support his wife, and when property is given or devised to him by her ancestor it may well be presumed that it was intended to enable him the better to discharge this legal duty; and as in such a case the gift or devise inures to the direct benefit of the wife, the spirit of the statute requires that she shall be charged with the estate received by her husband.
With the children of a descendant the case is altogether different. They have none of the legal rights secured in the husband, and it is only in occasional instances that they can be charged with the legal duty of providing for and supporting their parents. The reason of the rule fails when it is attempted
Gifts to grandchildren, made whilst their parent, the immediate descendant of the party making the gifts, is alive, will not be converted into advancements to such grandchildren by the subsequent death of the parent during the lifetime of the grandparent. Such gifts are mere gratuities at the time they are made, and chargeable neither to the grandchildren nor their parents, and subsequent events can not and do not change their legal character, and none of the grandchildren of the intestate can be properly charged with gifts made by him under the circumstances above stated.
Said heirs were properly charged with the value of the realty conveyed to their mother by Casey.
7. ' There is not sufficient proof to sustain the exception based upon the alleged fact that Martin and wife and others of the heirs and distributees executed to the intestate receipts acknowledging the reception of their full shares of his estate.
8. Martin is entitled to nothing on account of the note for $7,500, executed to him by the intestate March 20, 1857, and he should be required to account for the sum of the credits
The balance due from Martin to Powell, the intestate, on account of the property sold at the suit of the latter in the Kenton Circuit Court, in which'the judgment was. rendered in May, 1857, ought not to be charged as an advancement to Mrs. Martin. It is plain that this was an individual transaction between Powell and Martin, with which the wife of Martin had no connection whatever. Notwithstanding the admission made by Powell in open court that the claim had been settled in full, Martin subsequently acknowledged that such was not the case, and settled part of it by the conveyance of the house and lot charged to Mrs. Ross at $2,800.
The balance still due to Powell, amounting to something
There are many other exceptions to the master’s report. Some of them are not pressed in the argument of the cause, and many of them are not even noticed by counsel.
Trom the examination we have been able to make of the very voluminous record we have not discovered any sufficient reasons to conclude that the chancellor has erred in settling them, and except so far as his action is affected by the application of the principles announced in this opinion, his judgment is not intended to be disturbed. But for the errors of the judgment in principle and in detail, as heretofore set out, it is reversed on both the original and the cross-appeals, and the cause is remanded for a judgment conforming in all its details to the views herein expressed.
The chancellor may, if he thinks the ends of justice require it, permit the parties within reasonable time to take further proof as to any of the questions reopened by this opinion and judgment.