Crain v. West

• Court: Kentucky Court of Appeals
• Writing for the Court: HURT, C.J.
• Citation: Crain v. West, 191 Ky. 1, 229 S.W. 51 (Ky. Ct. App. 1921)
• Decision Date: 11 March 1921
• Parties: CRAIN v. WEST.

229 S.W. 51

191 Ky. 1

CRAIN v. WEST.

Court of Appeals of Kentucky.

March 11, 1921

Appeal from Circuit Court, Estill County.

Action by James F. West, administrator, against M. S. Crain guardian, and others. From an adverse judgment, the guardian appeals. Affirmed.

E. C O'Rear and Wm. L. Wallace, both of Frankfort, and A. S Johnson, of Jackson, for appellant.

Kelly Kash, of Lexington, for appellee.

HURT C.J.

Silas McIntosh, domiciled in Estill county, died, and left surviving him, his wife, Prudy McIntosh, and three infant children, the two older of whom were 19 and 16 years of age respectively, and the age of the youngest is not disclosed. He was the owner at the time of his death of certain lands in the county wherein he resided, but had previous thereto granted leases upon the lands to grantees, who had undertaken to bore for oil thereon, and in the event of success to pay to the grantor a royalty of a certain part of the oil obtained for the rights granted to them under the lease retaining the remainder of the oil for their services and outlay in the exploration for and producing the oil. Under the lease producing wells had been dug upon two tracts of the land, from the wells upon one of which a royalty of one-eighth and from the wells upon the other tract a royalty of one-sixteenth of the oil was reserved. The decedent owned no personal property at the time of his death except a machine for sinking oil wells.

The administrator with the will annexed of decedent instituted this action against the widow and heirs for a settlement of the estate and to obtain the advice of the chancellor as to what interest in the estate the widow was entitled, and especially to be advised as to whether she was entitled to be endowed of the royalties reserved for the oil production upon the land under the lease and to her rights therein, if any, prior to the assignment of dower. The petition discloses the fact that the decedent died testate, and that his will had been duly probated, but no prayer is made for a construction of the will, and no copy of it is embraced in the record, but we assume from the fact that the court seems to have ignored it and the counsel treat the case as being uninfluenced by the provisions of the will that the widow either renounced its provisions, or else its terms were such as to have no influence upon the matters involved upon this appeal, and hence we will treat the estate as that of intestate, as the court below and counsel here have done, so far as it relates to the determination of the questions presented by the appeal.

The court, in defining the rights of the widow in the estate of her deceased husband, among other things, adjudged that the administrator should pay to the widow the sum of $750 as property exempt from sale and distribution, under section 1403, subsec. 5. Ky. Stats., and further adjudged that from the death of the husband until the assignment of dower the widow was entitled to receive one-third of the royalties from the oil production upon the decedent's lands. From these decisions of the court the guardian of the infant children of decedent has appealed, and they will be considered in their order.

(a) The statute upon the authority of which the judgment directed the payment to the widow of the $750 exempted property is as follows:

"Personal property or money on hand or in bank to the amount of $750.00 shall be exempt from distribution and sale and shall be set apart by the appraisers of the estate of an intestate to his widow and children, or, if no widow, to his infant children or child surviving him. The appraisers shall state in their appraisement the money or the articles and value of each set apart by them to the widow, or infants, separately to the articles appraised for sale, but if the widow be present at the time of the appraisement, or any one authorized by her in writing, she may make her selection of the property appraised to the amount of said $750 and said appraisers shall so report."

The infant children, as it appears from the stipulation as to the facts filed with the record, are not the children of the widow, but the children of decedent by a former wife. It also appears that two of them are nearly or quite grown, and that neither of them resides with the widow. The foregoing statute is a substitute for the one existing previous to the year 1912, under which, the exempted property was for the exclusive benefit of the widow, if there were no infant children of the intestate residing with her, and, although the intestate left infant children, they had no interest in such property if they did not reside with her. Newman v. Winlock, 3 Bush, 241; Alexander v. Alexander, 86 Ky. 688, 7 S.W. 156, 9 Ky. Law Rep. 839; Howland v. Harr, 123 Ky. 732, 97 S.W. 358, 30 Ky. Law Rep. 53. The change in the language of the present statute from the former one providing that the setting apart of the exempted property shall be to the "widow and infant children," instead of to the "widow or infant children," as in the former statute, has under certain states of facts required different limitations to be placed upon the respective rights of the widow and children. That the Legislature intended that the widow should have supervision and control of the exempted property, unless an equitable reason exists to the contrary, is strongly indicated by the fact that she is authorized to make a selection of the property to be set apart, and the appraisers are required to act in accordance with her selections as to the property to be set apart, so that it does not exceed in value the sum of $750. In two instances only has this court ever upheld the contentions of infant children that the widow should submit to a division or partition of the exempted property between herself and the children. In Eversole v. Eversole, 169 Ky. 793, 185 S.W. 487, L.R.A. 1916E, 593, and in Landrum v. Landrum, 187 Ky. 196, 218 S.W. 717, such a conclusion was arrived at. In the former instance the mother was convicted as a felon and confined in prison, where it was impossible for the children to enjoy the property with her. In the latter instance the widow had ceased to be a housekeeper, and the children were involuntarily compelled to find homes for themselves elsewhere, and the exempted property, which was in kind, was stored by the widow in a place distant from their former home. In either instance it had become impossible, without fault upon their part, for the children to have any use of the property during their infancy, and a sale and partition was approved. The Legislature intended that the exempted property should be jointly used and enjoyed by the widow and the infant children of an intestate, and so long as the widow maintains a home to which the children have access and are permitted to use and enjoy the property, the widow's control and custody of it should not be disturbed, but, where the unity of the family, from no fault of the children, can be no longer maintained, equity will assert itself to secure the rights of the children in the property. In the instant case, however, no equitable reason is shown which would justify the division of the exempted money. It does not appear that the widow does not maintain a home to which the children have access, or that it is any fault upon her part that they do not reside with her or partake of the benefits of the money, or that she refuses in any way to share the benefits of it with them.

(b) The second ground of the appeal grows out of the application of section 2138, Ky. Stats., which is as follows:

"The wife shall be entitled to one-third of the rents and profits of her husband's dowable real estate from his death until dower is assigned."

The same principles and rules which govern a widow's right of dower in mines of various kinds upon the lands owned by her deceased husband apply to and govern her right of dower in oil wells. Oil in place in the land is a mineral and part of the land itself, and, so far as it relates to the questions to be considered, is similar to coal, iron, lead, or other solid mineral substances which may be in lands. Swayne v. Lone Acre Oil Co., 98 Tex. 597, 86 S.W. 740, 69 L.R.A. 991; Stoughton's Appeal, 88 Pa. 198; Funk v. Haldeman, 53 Pa. 229, 249; Williamson v. Jones, 39 W.Va. 231, 19 S.E. 436, 25 L.R.A. 222; Hague v. Wheeler, 157 Pa. 324, 27 A. 714, 22 L.R.A. 141, 37 Am.St.Rep. 736; Bettman v. Harness, 42 W.Va. 433, 26 S.E. 271, 36 L.R.A. 566.

That oil wells and other mines which a deceased husband opened upon his lands during his life or are opened upon the deceased husband's lands after his death by persons with whom he had entered into enforceable contracts for that purpose while living are real estate of which his widow is dowable is now no longer a subject of dispute. Priddy v Griffith, 150 Ill. 560, 37 N.E. 999, 41 Am.St.Rep. 397; K. R. C. Coal Co. v. Frazier, 161 Ky. 374, 170 S.W. 986; Whittaker v. Lindsey, 3 S.W. 9, 8 Ky. Law Rep. 690 ^[1] ; Koen v. Bartlett, 41 W.Va. 559, 23 S.E. 664, 31 L.R.A. 128, 56 Am.St.Rep. 884; Daniels v. Charles, 154 Ky. 235, 157 S.W. 32; Higgins' Fuel & Oil Co. v. Snow, 113 F. 433, 51 C.C.A. 267; Moore v. Rollins, 45 Me. 495; Hendrix v. McBeth, 61 Ind. 473, 28...