125 Ky. 177 | Ky. Ct. App. | 1907
Opinion op the Court by
Reversing.
TMs is an appeal from a judgment of the- Jefferson circuit court,' second chancery division, sustaining a demurrer to the petition, a motion to strike therefrom the name of F. J. Yager, as administrator de bonis, non, with the will annexed, of the estate of W. H. Yager, deceased, and dismissing the action.
This action was instituted by the appellants, F. J. Yager and Lizzie R. Lewis; the former suing as adinistrator de bonis non of the estate of W. H. Yager, deceased, and in his own right as an heir at law of the decedent, and the latter as assignee of Lucinda R. Shrader and Eliza J. Galbreath, sisters-, and also heirs at law, of W. IT. Yager, deceased. It is, in substance, averred in the petition that W. H. Yager died in Jefferson county in 1891, leaving a last will and testament, which was shortly thereafter duly admitted to probate by the Jefferson county court. The first clause of the will directs the payment of the testator’s just debts and funeral expenses. The second clause contains the following provision: “I will and devise unto my beloved wife, Nannie R. Yager, for and during the natural term of her life, all of the income, profits and dividends of all my estate of every kind and description, which I may own, or in which I may be interested, at the time of my death, wheresoever the same may be situated. Out of this income she shall pay the taxes and insurance to the same extent that my property is now insured and reasonable repairs, and after the payment of the
The petition contains, in substance, the' further averment that as, under the will of her husband, Mrs. -Yager was only entitled during her life to the income, dividends, and profits of the estate devised by her husband, subject to the charges for the payment of taxes and insurance, and the will made no disposition of the estate beyond her death, the same at her death descended under the statute to the testator’s next of kin and heirs at law, as he left no children surviving him or his- wife; that the bank stock in question was
As heretofore stated, the lower court sustained a demurrer to the. petition, and also a motion to strike therefrom the name of appellant F. J. Yager, as administrator de bonis non. Although appellee filed both a general and special demurrer to the petition,
It being conceded by counsel that the general demurrer to the petition was sustained by the lower court solely on the ground that the cause of action therein relied on was barred by the statute of limitation, we must determine whether this was error. It is insisted for appellees that, as the cause of action relied on is the-alleged fraud, actual or constructive, of the bank in assisting Mrs. Yager, the life tenant or trustee, under her husband’s will, to • sell and transfer the bank stock in controversy, in violation of the provisions of the will, and with knowledge of the rights of the remaindermen, and it appears from the averments of the petition that the appellants, remaindermen, knew of the alleged wrongful conversion of the bank stock more than five years before the action was instituted, appellees had the right to rely on the statute of limitations by demurrer; therefore the court did not err in sustaining the demurrer on that ground.
By section 2515, Ky. Stats., 1903, an action for relief on the ground of fraud or mistake must be commenced within five years next after the cause of action accrues, and by section 2519 the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake, but no such action
The rule of practice thus announced was fully approved by this court after much discussion of the
As a reversal roust be adjudged for this error, it is unnecessary, and would be premature, for us to pass on other questions discussed in the briefs of counsel which have not been decided by the lower ■court. They will arise after the filing of appellee’s answer, or in completing the pleadings, and will then be passed upon by that court.
Judgment reversed, and cause remanded" for further proceedings consistent with the opinion.