Fish v. Fish

• Court: Kentucky Court of Appeals
• Writing for the Court: CLAY, C.
• Citation: Fish v. Fish, 184 Ky. 700, 212 S.W. 586 (Ky. Ct. App. 1919)
• Decision Date: 13 June 1919
• Parties: FISH ET AL. v. FISH ET AL.

212 S.W. 586

184 Ky. 700

FISH ET AL. v. FISH ET AL.

Court of Appeals of Kentucky.

June 13, 1919

Appeal from Circuit Court, Rockcastle County.

Suit by Lycurgis Fish and another against Volicy Fish and others. From judgment rendered, plaintiffs appeal. Affirmed.

J. B Adamson, of Frankfort, and Bethurum & Lewis, of Mt. Vernon for appellants.

C. C Williams and J. W. Brown, both of Mt. Vernon, and Hobson &amp Hobson, of Frankfort, for appellees.

CLAY C.

This is a contest over the division of the estate of A. T. Fish, who died intestate and a resident of Rockcastle county in the year 1913. The contest is between his second wife and widow, Volicy Fish, and their daughter, Samantha Adams, on the one hand, and the issue of his first marriage on the other hand.

By his first wife, Samantha Fish, A. T. Fish had several children. On June 18, 1890, when he was 64 years of age, he married Volicy Menifee, who was then 22 years of age, and one daughter, Samantha Adams, was born of this marriage. On the day prior to the marriage he and Volicy Menifee entered into the following antenuptial contract:

"Know all men by these presents that we, the undersigned A. T. Fish and Volicy Menifee, have this day entered into a marriage contract, by the terms of which it is agreed that in the event there be an heir, or heirs, born to us, and in the event that the same be living at the death of the father, A. T. Fish, and the mother also be living, then the mother shall be endowed with one-third of the home place of the father and husband. And all other property belonging to the husband at the time of his death shall be sold, and the wife, instead of dower in said property, shall take a child's part. But in the event of the husband's death without heir or heirs by the said Volicy, his wife, then she is to take of all of his property owned by him at the time of his death, in lieu of dower, a child's part of said property."

Claiming that A. T. Fish was the owner of a tract of land consisting of 209 acres at the time of his death, Volicy Fish and her daughter, Samantha Adams, asserted an interest therein, as well as in certain personal property left by the deceased. Their claim to an interest in the entire tract of land was resisted by his issue of the first marriage on the ground that 109 acres thereof belonged to his first wife. Thereupon Volicy Fish insisted that if this was true, the antenuptial agreement was obtained by fraud. The further claim was made that, even if the antenuptial agreement was valid, it gave her an absolute interest in one-third of the home place, and not merely a life interest therein. She further sought to have the descendants of the first marriage of A. T. Fish charged with certain advancements.

On final hearing the chancellor upheld the antenuptial agreement, and further held that the 109 acres of land in contest were conveyed to the first wife of A. T. Fish by her father, and belonged to her children and grandchildren, and that neither Volicy Fish nor her daughter was entitled to any interest therein. It was further adjudged that Volicy Fish was entitled to a life interest in 31 1/2 acres, that being one-third of the adjoining tract, and the claim that the issue of the first marriage should be charged with certain advancements was rejected.

From that judgment this appeal is prosecuted.

1. The evidence fully supports the cellor's finding that the 109 acres of land belonged to Samantha Fish, the first wife of the deceased, and the claim of...