153 Ky. 618 | Ky. Ct. App. | 1913
Opinion op the Court by
Reversing.
Preston Wade, a resident of Franklin county, died intestate in 1908, and left surviving him his widow Kate, and their children, Robert L. Wade, Mattie Wade, Walter Wade, Bettie M. Wade and Hattie M. Wade. He left a farm of 217 acres near Benson, in Franklin county. The widow has since married Leonard Moore.
On February 6, 1912, Robert L. Wade, the adult son, and his mother Kate Moore, and her husband Leonard Moore, brought this action against the four infants, and Hattie Wade the infant wife of Robert L. Wade, for a sale of the farm and a division of the proceeds^ upon the ground that said farm could not be divided without materially impairing the value of the respective interests therein. Miattie Wade is 17 years of age, Walter is 13, Bettie is 7, and Hattie M. is 4 years of age. Hattie Wade, the wife of Robert L. Wade, is 18 years of age.-
Proof having been taken as to the ownership and indivisibility of the farm, it was sold to Mrs. Moore for $6,100; and the sale having been confirmed, the infant defendants by their guardian ad litem prosecute this' appeal. -
Said amendment further provides that a reasonable compensation shall be made to her out of the proceeds of sale, or that she shall have the same right in property purchased with the proceeds as she had in the property sold.
In this case the judgment expressly provides that the value of Hattie Wade’s contingent right of dower is secured to her out of the share going to her husband, Robert L. Wade, by a lien on the land, until she becomes 21 years of age, when it shall be paid to her. This was all the law required to divest her of her contingent right of dower. Finney v. Finney, 144 Ky., 120.
“The meaning of the statute is to vest a sound discretion in the chancellor, and to authorize him to adjudge her compensation for her dower, instead of allotting to her dower. The discretion of the chancellor is to be exercised in view of all the facts of the case so as to best protect the interest of all the parties. The widow may not demand a sale of the property so that she may obtain a certain sum absolutely in lieu of dower, but where for other reasons the property is sold, and she prefers to take a lump sum absolutely, the chancellor in his discretion may so adjudge.”
In the case at bar the property was sold because of its indivisibility, and in allowing the widow a lump sum as compensation for her dower, the chancellor did not abuse his discretion.
3. There is no allegation, however, in the petition that the infants have no statutory guardian; and
For the error indicated, the judgment is reversed, with directions to the circuit court to set aside the sale.