Frasure v. Martin
| Decision Date | 07 March 1952 |
| Citation | 247 S.W.2d 51 |
| Parties | FRASURE v. MARTIN et al. |
| Court | United States State Supreme Court — District of Kentucky |
Joe P. Tackett, Joseph D. Harkins, Prestonsburg, for appellant.
A. B. Combs, Prestonsburg, for appellees.
CLAY, Commissioner.
This controversy involves the apportionment of rent, realized from a house and lot, between the widow and heirs of one deceased. Appellant's husband died intestate in 1933, and since that date she has had control of and rented to others residence property owned by him. The heirs have called on her to account. The Chancellor allowed her one-third of the net amount realized.
On this appeal she contends: (1) she was entitled to one-third of the gross rent; and (2) the heirs must reimburse her for the taxes she paid and the expenses she incurred in the maintenance of the property.
Section 2138 of Kentucky Statutes, effective at the date of the husband's death, provides 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, and she shall hold the mansion-house, yard, garden, the stable and lot in which it stands, and an orchard, if there is one adjoining any of the premises aforesaid, without charge therefor, until dower is assigned her.'
Since appellant did not live with her husband on this property at the time of his death, or thereafter occupy it as a home, it did not constitute the 'mansion-house' contemplated by the statute. Rich v. Rich, 7 Bush. 53, 70 Ky. 53. Therefore appellant was not entitled to the use of this residence free of charge, and it must be classified as other dowable real estate.
Under the statute she was only entitled to one-third of the 'rents.' Whether this is gross or net was determined in Morton's Ex'rs v. Morton's Ex'r, 112 Ky. 706, 66 S.W. 641. Therein we held that the widow was entitled to one-third of the gross rent, and the taxes and cost of repairs were debts against the estate for which she could not be charged. This rule was reaffirmed in Wyly v. Kallenbach et al., 256 Ky. 391, 76 S.W.2d 34, wherein we said that the heirs must pay the ordinary expenses of maintaining and using the estate in the ordinary way. That case involved an extraordinary operation of the premises for profit, but it was held the normal expenses should not be borne or shared by the widow.
The Chancellor found in the present case that appellant had collected $2,109 gross rent on the premises and that she had expended $771.95 for...
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