Potter, &C. v. Redmond's Guardian

• Decision Date: 03 October 1906
• Court: Kentucky Court of Appeals
• Parties: Potter, &c. v. Redmond's Guardian.

123 Ky. 400

Potter, &c. v. Redmond's Guardian.

Court of Appeals of Kentucky.

October 3, 1906.

Appeal from McCracken Circuit Court.

W. M. REED, Circuit Judge.

Judgment for Plaintiff. Defendants appeal. Affirmed.

BRADSHAW and BRADSHAW and CRICE and ROSS, attorneys for appellants.

D. G. PARK attorney for appellees.

OPINION BY CHIEF JUSTICE HOBSON — Affirming.

F. M. Houser qualified as guardian for Onie and Nonie Redmon on September 4 1884. He renewed his bond as guardian on July 14, 1891, with J. E. Potter and E. R. Bradshaw as his sureties; the surety in the original bond having died. F. M. Houser died in the year 1896, and W. H. Donaway was appointed as guardian for Onie and Nonie Redmon in his stead. This suit was subsequently filed by the wards to recover of the sureties of the former guardian an alleged balance in his hands. J. Q. Redmon, the father of the infants, owned at his death a homestead. He had been married twice. By his first wife he had four children, who were infants at his death, and by his second wife he had two children, Onie and Nonie, both then infants of tender years. The second wife, who was their mother, survived her husband, but died shortly afterwards. At the father's death the four children by his first wife were not living with him, but were living with their mother's kindred. His widow continued to occupy the homestead with her two children until her death. The guardian, Houser, after her death, collected $200 for the rent of the homestead; he having taken charge of the place after the mother's death and rented it out as guardian. He did not qualify as guardian of the other four children, and credited all of the rent to his wards in his settlements. This money, with its interest, is the chief ground of contention here.

Section 1707, Ky. St. 1903, provides: "The homestead shall be for the use of the widow so long as she occupies the same, and the unmarried infant children of the husband shall be entitled to a joint occupancy with her until the youngest unmarried child arrives at full age. But the termination of the widow's occupancy shall not affect the right of the children." All six of the infant children of the husband were entitled to a joint occupancy with the widow, and the termination of her occupancy did not affect the right of the children. The fact that four of the infant children were not living with the father at his death is immaterial. The purpose of the statute is to create an asylum for the unmarried infant children of the husband, and they are entitled to this asylum under the statute, whether they reside with the father at his death or not. Being infants, they are not chargeable with laches, and did not lose their rights by not asserting them at the time of abandoning the home. But, while this is so, the guardian found his wards in possession. He took charge of them and the property. He received the property as guardian. He rented it out as such and collected the rents, charging himself with it in his settlements. The other four infants asserted no claim for it. The time in which they might have asserted such claim has long since passed, and, while the...