104 Ky. 531 | Ky. Ct. App. | 1898
DELIVERED THE OPINION OE THE COURT.
It appears from this record that James Welch died, intestate, in Franklin county, Ky., in August, 1894, leaving a widow, the appellant, Kate Welch, but no children, and that Pat Newman was appointed administrator of the estate of said decedent. It further appears that on July 26, 1895, Kate Lewis, and Ben Lewis, her husband, instituted an' action in the Franklin Circuit Court against Kate W'elch, Pat Newman, adminstrator of said James Welch, Mollie Driscoll, and. John Driscoll, her husband, Annie Connors, and Mike Connors, her husband, and Daniel J. Newman. It is alleged in the petition: That Kate Lewis and Mollie Driscoll were sisters of said decedent; and that Annie Connors was a niece of said Welch, and Daniel J. Newman was a nephew of said Welch, and the only lawful heirs at law of said Welch: and that the Said Kate Lewis, Mollie Driscoll, Annie Conners, and Daniel J. Newman, were entitled, under the laws of descent, to have and receive one-fourtli equal part of the estate of said James Welch, after the payment of debts and costs of administration, .and said widow was entitled to one-half of the surplus. That there came to the hands of said Newman, as administrator, $4,075.72 of assets belonging to the estate of said decedent, one-fourth part of which sum, after the payment of debts and costs of administration and the distributable share of said widow, belonged to, and still belongs to, the plaintiff, Kate Lewis, which one-fourth amounts to at least $500. That, soon after the qualification of said' Newman as administrator, these plaintiffs and the defendant, Daniel J; Newman, were ignorant as to the financial condition of the estate left by said decedent; and defendant Kate Welch came to these plaintiffs and the defendant Daniel J. Newman, and, for the purpose of
It is insisted, for appellant, among other things, that the testimony does not sustain the averments in the petiI tion. It may be true that the testimony in chief does not' fully come up to the averments in the petition; but it seems to us that the preponderance of the proof conduces to establish that appellees, Lewis and Newman, were not aware of the condition of the estate of James Welch at the time they signed the release. Allowing the appellees and appellant to have all testified truly as to what took place at the time of the assignment, yet it seems reasonable that, while appellant only aimed to state her own financial condition, the circumstances were such as to reasonably .lead appellees to understand that she was referring to the condition of the estate of the decedent, Welch, and, that being true, it would not be equitable to hold them bound by the release executed, they having received no consideration for the execution of the release or transfer.
We are further of the opinion that the appellees are not estopped by their failure to appear before the county judge and object to or resist the settlement made by the administrator; and taking into consideration all the testimony introduced, and giving due weight to the opinion of the chancellor, who may be reasonably presumed to have been in a condition to properly weigh and determine as to all the testimony, we are not inclined to reverse the judgment rendered.
As to the cross appeal of the appellees, we are clearly of