Carpenter v. Carpenter

• Decision Date: 24 April 1945
• Citation: 299 Ky. 738,187 S.W.2d 282
• Parties: CARPENTER et al. v. CARPENTER.
• Court: Kentucky Court of Appeals

187 S.W.2d 282

299 Ky. 738

CARPENTER et al. v. CARPENTER.

Court of Appeals of Kentucky

April 24, 1945

Appeal from Circuit Court, Breathitt County; Chester A. Bach, Judge.

Action by Adam Carpenter and others against Dewey Carpenter for a division or sale of a tract of land, wherein defendant filed a counterclaim. The case was transferred to the common law docket. The jury returned a verdict for defendant on the counterclaim and defendant was adjudged a lien for such amount upon the land which was ordered sold, and plaintiffs appeal.

Reversed for further proceedings in accordance with the opinion.

A. H. Patton, of Jackson, and W. R. Prater, of Salyersville, for appellants.

Williams & Allen, of Jackson, for appellee.

REES Justice.

Stephen P. Carpenter, a resident of Breathitt county, Kentucky, died intestate on November 29, 1939. He left as his only heirs at law nine children, all more than 21 years of age. Mrs Stephen P. Carpenter died in September, 1939. On June 20 1940, eight of the children brought an action in the Breathitt circuit court against their brother, Dewey Carpenter, in which they sought a division, or sale of a tract of land consisting of 150 acres owned by their father at the time of his death. They alleged in their petition that Stephen P. Carpenter, at the time of his death, was a widower; that he owed no debts, and that the land described in the petition was the only real estate owned by him. The defendant, Dewey Carpenter, in the second paragraph of his answer and counterclaim, alleged that in 1923 he entered into a contract with his father, Stephen P. Carpenter, by the terms of which the latter agreed to give the defendant one-half of the tract of land described in the petition on condition that the defendant and his wife move into the house occupied by Stephen P. Carpenter and his wife, and live with and take care of them until their death, and that he and his wife moved into his father's home and for a period of 16 years took care of, provided for, and waited upon Stephen P. Carpenter and his wife, and that he fully performed all the duties imposed upon him by the contract but the Stephen P. Carpenter had not complied with the terms of the contract in that he failed to convey to the defendant or devise to him one-half of the tract of land, and that he was thereby damaged in the sum of $2,500, the fair value of one-half of the land described in the petition. The plaintiffs moved the court to strike the second paragraph of the answer and counterclaim on the ground that the defendant had no claim against them but the alleged claim was against the estate of Stephen P. Carpenter, deceased. An order was entered sustaining the motion to strike, but later this order was set aside and the motion to strike was overruled. A general demurrer to the second paragraph of the answer and counterclaim was overruled, and a reply completed the issues. The case was transferred to the common law docket, and on a trial before a jury a verdict for the defendant for $2,500 was returned and he was adjudged a lien for that amount upon the land which was ordered sold. The plaintiffs have appealed, and first insist that the court erred in overruling their motion to strike the counterclaim. They rely upon Rudd v. Planters Bank & Trust Co., 283 Ky. 351, 141 S.W.2d 299, 301, where the court, after stating the law in respect to an oral contract similar to the one here involved, said: 'From this statement of the law it is apparent that appellant had no cause of action whatever for specific performance of the contract and had no cause of action of any kind against the heirs at law. It is further apparent that the only cause of action in appellant's behalf was one against the administrator for the value of services rendered by him.'

In the Rudd case, A. A. Rudd sued the administrator and heirs at law of Mattie Johnson to recover for services rendered to the decedent during her lifetime under an oral contract by the terms of which the decedent agreed to devise to him a house and lot if he and his family would continue to live with her until the time of her death and to furnish her board and the companionship of his family. It did not appear in that case that the administrator did not have in his hands personal property belonging to the estate of the decedent. In the case before us, the appellee alleged in his counterclaim that Stephen P. Carpenter owned no personal property at the time of his death. This allegation was not denied. All of the decedent's property, consisting of the 150-acre tract of land described in the petition, had passed to and vested in his heirs at law. Under these circumstances, the heirs at law are liable to a direct action by a creditor. KRS 396.070 and 396.080. This avoids a circuity of action. Nor is it necessary in an action by a creditor under these sections of the Statutes that the claim be proved or demanded before the institution of the suit. Lay v. Lay, 201 Ky. 93, 255 S.W. 1054. In Maynard v. Maynard, 178 Ky. 332, 198 S.W. 910, Thomas V. Maynard died intestate the owner and in possession of a tract of land worth about $6,000. His heirs instituted an action against the widow for a partition of the land. The widow, by way of counterclaim, alleged that the decedent's estate was indebted to her in the sum of $1,000 for money borrowed by the decedent, and she asked judgment for that amount and that she be adjudged a lien on the land. The personal representative was not made a party to the action. The lower court adjudged to the widow a lien upon the land for $1,000, and on the appeal by the heirs it was contended that the judgment was void because the claim was not verified as claims against a decedent's estate are required to be by sections 3870-3874, Kentucky Statutes inclusive, KRS 396.010 and 396.020. The judgment was affirmed, and, in the course of the opinion, it was said that under section 2089, Kentucky Statutes, KRS 396.080, an heir or devisee may be sued in equity for any liability of the decedent, and the creditor may obtain a lien on any...