Crain v. Mallone

• Decision Date: 28 October 1908
• Parties: CRAIN et al. v. MALLONE et al.
• Court: Kentucky Court of Appeals

113 S.W. 67

130 Ky. 125

CRAIN et al. v. MALLONE et al.

Court of Appeals of Kentucky.

October 28, 1908

Appeal from Circuit Court, Hart County.

"To be officially reported."

Action to settle Susan Mallone's estate. From a judgment sustaining a demurrer to her answer, defendant Annie Lee Crain and another appeal adversely to J. C. Mallone and others. Affirmed.

McCandless & Larimore, for appellants.

C. B Dowling, for appellees.

CARROLL J.

Mrs Susan Mallone died intestate, leaving surviving her three children--the appellant Annie Lee Crain, wife of L. F. Crain and J. C. and W. S. Mallone. This action was brought to settle her estate and distribute the proceeds between her children. J. C. Mallone was a person of unsound mind, and the guardian ad litem appointed to defend for him sought to charge Mrs. Crain and W. S. Mallone with advancements made to them by Mrs. Mallone. Mrs. Crain and W. S. Mallone admitted in a pleading that they had received from their mother advancements in land and money, amounting to the value of about $2,000 each; but they denied that they should be charged with these advancements for the benefit of J. C Mallone, because, as they averred, he was some 45 years of age when his mother died, and had been destitute of mind since his infancy, and an idiot, and was supported and cared for all of his life by his mother; and that this care and attention for the years after he reached his majority was worth at least $200 per year, and that their mother, recognizing that she had in this way advanced to J. C. Mallone largely more than $2,000, for the purpose of making her other children equal with him, advanced to them $2,000 each. After this pleading was filed, W. S. Mallone not desiring to further contest the fact that he should be charged with $2,000, advanced to him, his name was stricken from the pleading denying that J. C. Mallone was not entitled to charge the other children with the advancements. Thereupon the demurrer filed by the guardian ad litem of J. C. Mallone to the answer of Mrs. Crain, setting up the reasons why she should not be charged in the settlement of the estate with the $2,000 advanced to her, was sustained; and, declining to amend, she prosecutes this appeal. So that the only question in the case is whether or not her answer presented a good defense.

Ky. St 1903, § 1407, provides that: "Any real or personal property or money, given or devised by a parent or grandparent to a descendant, shall be charged to the descendant of those claiming through him in the division and distribution of the undevised estate of the parent or grandparent; and such party shall receive nothing further therefrom until the other descendants are made proportionately equal with him, according to his descendible and distributable share of the whole estate, real and personal, devised and undevised. The advancement shall be estimated according to the value of the property when given. The maintaining or educating, or the giving of money to a child or grandchild, without any view to a portion or settlement in life, shall not be deemed an advancement." Therefore, unless the value of the services, attention, and care rendered by his mother to the idiot, J. C. Mallone, after he arrived at the age of 21 years, should be charged to him as an advancement, there is no escape from the conclusion that, under the statute, the appellant Mrs. Crain must in the settlement of the estate, as between herself and J. C. Mallone, be charged with the $2,000 advanced to her. The intention of Mrs. Mallone in making the advancements will not be allowed to defeat the statute, or to relieve the children who received the advancements from accounting for them. Bowles v. Winchester, 13 Bush, 1. Indeed, counsel for the appellant concede that, unless the answer of Mrs. Crain presented a defense, she must be charged with this sum. Their only contention is that, admitting as true the averments of their pleading, J. C. Mallone received in the way of advancements more than Mrs. Crain, and hence no account as between them should be taken of advancements in the settlement and distribution of the estate. In other words, their argument is that an idiotic and helpless adult child who is taken care of by his parents must in the settlement of the parent's estate be charged as an advancement with the value of the...