Edwards v. Livesay
| Decision Date | 06 May 1924 |
| Citation | 203 Ky. 53,261 S.W. 839 |
| Parties | EDWARDS v. LIVESAY ET AL. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Rockcastle County.
In the matter of the estate of George Livesay deceased. Suit by George S. Edwards, seeking to surcharge settlement of J. B Livesay and another, administrators. From a judgment dismissing the petition, plaintiff appeals. Reversed and remanded.
Denton & Perkins, of Somerset, and L. W. Bethurum and S.D. Lewis both of Mt. Vernon, for appellant.
J. W Brown and C. C. Williams, both of Mt. Vernon, for appellees.
George Livesay died intestate a resident of Rockcastle county on March 8, 1915. He left surviving him five sons, one daughter, and the children of a deceased daughter, Laura B. Edwards. In April, 1915, J. B. Livesay and W. D. Livesay, two of his sons, qualified as the administrators of the estate. They filed their settlement with the county judge on July 27, 1918, showing that $17,562.68 had come to their hands, and that they had distributed this equally among the distributees, less cost of administration and debts without any consideration of advancements. On November 14, 1919, this suit was filed by George S. Edwards, the son of Laura B. Edwards, seeking to surcharge the settlement of the administrators, and alleging that each of the other children had received large advancements which should have been charged to them, and that before they received anything further out of the personal estate the other distributees should be made equal with them. He prayed that the advancements be ascertained, and that the defendants be required to pay into court such sums as might be necessary to equalize all of the heirs in the estate. An answer was filed controverting the allegations of the petition. A large mass of proof was taken, and on final hearing the circuit court dismissed the petition.
At the outset it may be proper to state briefly the nature of the action and the relief to which the plaintiff was entitled, if he established the facts alleged by him. An advancement to a child does not constitute a debt from a child to a parent. If the advancement is more than a child's part of the estate, he cannot be required to bring the excess into hotchpot and account for it, but, if advancements varying in size have been made to the different children, those who have received less than the others by way of advancement are entitled to be made equal with the others, before any further distribution is made of the estate of the intestate left at his death. In this case the administrators received something over $17,000. If the advancements were unequal, this money should not have been divided equally between the distributees, but those who had received less than the others should first have been equalized, and then the remainder of the estate should have been distributed equally. It was the duty of the administrators to do this, and, if they failed to do it, the distributee who suffered a loss by reason thereof had a right of action to surcharge the settlement and to obtain a correct settlement of the estate. This in substance was the plaintiff's cause of action, and the demurrer to the petition was properly overruled.
The judgment of the court dismissing the plaintiff's petition seems to have been based upon a mass of proof showing that the intestate in the later years of the nineteenth century settled his children on different tracts of land he owned, telling them that he would give it to them, and that these tracts at the time of such settlement, as land was then selling, were each of value $1,500. He, however, did not make any of the children a deed then; the deeds were made some years later, and the first question in the case is whether these lands are to be valued as of the date when the child took possession or as of the date when the deed was made.
This is not a new question in this court. In Barber v. Taylor's Heirs, 9 Dana, 88, the circuit court allotted to each of the children who had been settled by the father on land in 1814, without any written evidence of the gift, the tract which each had occupied, estimated at the time of partition without regard to improvements which had been made by the occupants respectively, and charged the children with its value, estimated at the date of the conveyance in June, 1833. Holding this correct, the court said:
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