Dowell, &C. v. Dowell's Admr., &C.

• Decision Date: 23 February 1910
• Citation: 137 Ky. 167
• Parties: Dowell, &c. v. Dowell's Admr, &c.
• Court: Kentucky Court of Appeals

Page 167

137 Ky. 167

Dowell, &c. v. Dowell's Admr, &c.

Court of Appeals of Kentucky.

February 23, 1910.

Appeal from Breckinridge Circuit Court.

WEED S. CHELF, Judge.

Judgment for plaintiffs, defendants appeal. — Affirmed.

MURRAY & MURRAY for appellants.

CLAUDE MERCER, N. C. McMERCER and R. L. GREENE for appellees.

OPINION OF THE COURT BY JUDGE SETTLE — Affirming.

Riley Dowell died in Breckinridge county in 1905 intestate, leaving a small personal estate and two tracts of land, one of 70, and the other of 109, acres. The appellee Charles Blanford was appointed and duly qualified as administrator of the decedent's estate. The decedent left surviving him eight children, viz., the appellants, Milt Dowell and Abe Dowell, and the appellees, Kate Adams, wife of James Adams, Nancy Brown, wife of Milton Brown, Mattie Galloway, wife of John Galloway, Polly Snyder, wife of Horace Snyder, Susan Hardaway, wife of W. G Hardaway, and Bettie Dowell, the latter being a person of feeble intellect, incapable of contracting or caring for herself. Under the statutes of descent and distribution the children named as heirs at law of Riley Dowell, deceased, were entitled to share equally in his estate, real and personal, each taking an eighth thereof, after the payment of his debts. But as the appellants, Milt and Abe Dowell, had lived with their father, run his farm, paid some of his debts and supported him for several years prior to his death, they claimed, and were accorded by their sisters a larger share each of the landed estate than was demanded by the latter for themselves.

So, on January 4, 1906, which was but a short time after the father's death, the heirs got together and mutually agreed that appellants, Milt and Abe Dowell, should together take and own the larger and far more valuable 109-acre tract of land, and that the appellees, their sisters, exclusive of Bettie Dowell, should together take and own the 70-acre tract. It was further agreed by the parties that appellants would pay to their sister Bettie Dowell $800 for her interest in the real estate left by Riley Dowell, deceased. Pursuant to this agreement, Bettie Dowell, by deed of general warranty, conveyed to her brothers and sisters her undivided one-eighth interest in the lands left by Riley Dowell, and at the same time her sisters, together with their husbands, respectively, executed and delivered to appellants, Milt Dowell and Abe Dowell, a deed of general warranty, conveying to them jointly their entire undivided interest each in the 109-acre tract of land, and the latter, with their wives, by a like deed conveyed to their sisters, except Bettie Dowell, jointly their entire interest each in the 70-acre tract. These deeds were at once duly recorded in the office of the clerk of the Breckinridge county court.

On January 12, 1906, appellants and appellees, by another agreement, then reduced to writing and signed by the parties, arranged that the money appellants were to pay Bettie Dowell for her interest in the decedent's lands should be placed in the hands of Charles Blanford as her trustee, to be kept securely invested by him for her sole use and benefit, in order that the interest thereon, and only so much of the principal as might be necessary, might be used to provide her with "suitable raiment and medical attention. The writing also provided that appellees, the sisters of Bettie Dowell, should severally "assume the sole care and protection of Bettie Dowell, furnishing her as good board and lodging as they provide for their own families, relieving their brothers, Milton Dowell and A. B. Dowell, parties of the second part, of all responsibility and care of her whatever." The writing contains the further provision that in the event the sisters of Bettie Dowell faithfully comply with their undertaking to care for, protect, board, and lodge her, all that may remain at her death of the money held by Blanford shall be equally divided among them, but if any of the sisters fail to perform the agreement, she or they shall receive no part of what may remain in Blanford's hands after the death of Bettie Dowell. Although the deed from Bettie Dowell to her brothers and sisters acknowledges the payment by the former of the $800 she was to receive for her interest in her father's estate, it was never in fact paid by them, nor did it or any other amount ever go into the hands of Charles Blanford for Bettie Dowell, notwithstanding which it seems to be admitted that appellees, her sisters have cared for and supported her as they obligated themselves, by the writing of January 12, 1906, to do.

On January 30, 1906, the appellee Charles Blanford, as administrator, by an action in equity instituted in the court below, asked a settlement of his accounts, and to that end made the heirs at law of the decedent, and such of the latter's creditors as were known to him, defendants. At the appearance term of the court the appellants, Milt Dowell and Abe Dowell, filed separate answers and counterclaims, in which each claimed to be a creditor of the estate to the amount of $500, for labor and services alleged to have been rendered the decedent during the five years next before his death, at his request and upon his promise to pay therefor.

At the succeeding term of the court appellants filed a joint answer, which was made a counterclaim against the administrator and cross-petition against their sisters. In this pleading appellants alleged a further claim of $9,887.35 against the decedent's estate, made up of $8,232.62 of purchase money, including principal and interest, it was alleged they paid for their father in satisfaction of certain notes secured by a vendor's lien upon the lands he owned at the time of his death, and the further sum of $1,654.73 they claim to have paid in satisfaction of other notes and demands owing by him prior to his death, including $650, the cost of erecting a barn and small house on his land; it being also alleged that they paid for their father the several notes and demands constituting the total of $9,887.35, at his request and upon his verbal promise made when appellants discharged them, and again within five years prior to his death, to repay same by deeding or willing them all of his lands, which he failed to do. The claims asserted by appellants against the estate by the joint answer, counterclaim, and cross-petition, and those asserted by them in the first, or original, answers and counterclaims, amount in the aggregate to $10, 887.35. The administrator and the sisters of appellants by appropriate pleadings controverted the claims asserted against the estate of the decedent by appellants and averred in substance that the alleged services for which they claimed $500 each were rendered gratuitously and in return for their use of decedent's lands; that the several notes and demands constituting appellants' claim of $9,887.35, if paid by them for the decedent at all, which was denied, was without a request from decedent that they do so, or promise on his part to repay them; that the alleged agreement of the decedent to compensate appellants for what they claim to have paid for him by conveying or devising them his lands, if made at all, which was denied, was within the statute of frauds and unenforcable; and that appellants' demands, as well as the various notes and claims included in them, were barred by the statute of limitations, which was duly pleaded.

It was further alleged by appellees that at the time of the agreed division of the decedent's lands between appellants and the other heirs at law, and as a part of the consideration for same, appellants relinquished any and all claims and demands they had or held against the decedent's estate, and in satisfaction thereof demanded and accepted the 109 acres of land they received in the division, and were thereby estopped to assert or recover such claims, or any part thereof, against the decedent's estate, which estoppel was formally pleaded. After the filing by appellants of necessary additional pleadings controverting the affirmative matter contained in those of appellees, the parties took proof, and following a submission of the case the circuit court rendered judgment rejecting and dismissing appellants' demands, and from that judgment they have appealed.

We deem it unnecessary to consider the various motions and demurrers made and filed by either party, as we have discovered no material error in any ruling of the court thereon, and find that the issues presented by the pleadings are substantially as we have indicated.

We do not think appellants' demands of $500 each for labor and services claimed to have been rendered the decedent within the five years preceding his death are sufficiently...