Gayheart's Adm'r v. Gayheart

• Decision Date: 10 October 1941
• Citation: 287 Ky. 720,155 S.W.2d 1
• Parties: GAYHEART'S ADM'R et al. v. GAYHEART et al.
• Court: Kentucky Court of Appeals

155 S.W.2d 1

287 Ky. 720

GAYHEART'S ADM'R et al. v. GAYHEART et al.

Court of Appeals of Kentucky

October 10, 1941

Appeal from Circuit Court, Knott County.

Action by Earl Gayheart, administrator of the estate of Jemima Gayheart, deceased, against Tom Gayheart and others to sell land to pay estate's debts. From a judgment for the defendants, plaintiff appeals.

Affirmed.

Craft &amp Stanfill, of Hazard, and J. W. Jones, of Lexington, for appellant.

John W Caudill, of Prestonsburg, for appellees.

SIMS Commissioner.

Mrs Jemima Gayheart died intestate on May 11, 1930, possessing practically no personal estate but was the owner of a 50 acre farm located in Knott County upon which she resided. A son, Earl, qualified as administrator and instituted this action against his father, brothers and sisters to settle the estate alleging that it was necessary to sell the land to pay the debts. The petition alleged the estate was indebted to him in the sum of $1,645.48 for money and supplies he had advanced to his mother at her special instance and request and for which she promised to pay him. It further alleged at her special instance and request he performed labor on her farm for five years and she promised to pay him a reasonable sum therefor, which is $1,500. The answer is a traverse, and upon Earl's motion the case was referred to the master commissioner to hear proof and report claims.

After hearing proof the commissioner filed his report allowing the $1,645.48 but refusing to allow any part of the $1,500 claim. The defendant's exceptions to this report were sustained by the chancellor who adjudged the $1,645.48 was not a proper claim against the estate, and held its only indebtedness was $221.60 for funeral expenses (which was not contested). He ordered the land sold to pay the funeral expenses and the action continued for further proceedings. Earl appeals.

The proof shows Mrs. Gayheart was a large, robust woman, industrious and frugal, and although illiterate, she was the real head of her household. Her husband, Tom, was a horse trader, rather of the cavalier type without much earning capacity. And as he spent most of his time away from home, the responsibility of rearing and supporting the family largely devolved upon his wife. There were seven children, three boys and four girls, and at times the family had a struggle to make ends meet. Burnam, the oldest boy, had charge of the farm until he married and established his own home. Then the next boy, Grover, assumed command until he married in 1924 or 1925, and he was succeeded by Earl, who was 24 when he testified in 1931, so he must have been about 17 years of age when he took charge of his mother's farm. During the time Earl had charge of the farm, the household consisted of himself, his mother, her husband, Tom (when Tom was home), a sister, Alpha, and another sister, Molly, and her two small children. About 1927 Alpha married Jim Cantrell who became a member of the household and an associate, if not a partner, of Earl in operating the farm and raising and dealing in livestock.

All the family, with the possible exception of Tom, possessed considerable industry and each lent a helping hand to the family support even after leaving the parental roof. Molly taught school for five years and used some of her salary for the benefit of her mother and the family. As a member of the household under Earl's regime, Molly testified she did the cooking and washing, and applied the meager proceeds from her own farm to the common welfare. After he left home, Burnam contributed the rent corn from his farm to his mother while Earl operated her farm. After laying his crop by in July, Earl worked in coal mines until March when he would return to the farm to pitch another crop. He thus worked for three or four years and his earnings in the mines were between $3 and $4 per day, a goodly portion of which went into the family till. Mrs. Gayheart at times took in washing and she received $75 per year rental from an oil lease on her farm. Thus we have some idea of how the family lived.

Earl's claim of $1,645.48 is made up of taxes he contends he paid for his mother from 1922 to 1930, and a great number of items of supplies he furnished the family such as food, clothing and coal, also, supplies for the farm such as fencing, feed for the livestock, lumber and repairs for buildings. There is considerable conflict in the evidence as to whether he furnished the money which paid the taxes or whether it came from the oil rental augmented by funds contributed by the other children. The proof shows Jim Cantrell and Earl raised and dealt in considerable livestock and at one time they sold between $300 and $400 worth of cattle to Burnam. No accounting was made of what they received from the farm. It is true most of the farm produce, or the proceeds therefrom, went to support the family but Molly testified she hoed corn the same as Earl and Jim. By good management Earl not only made the farm contribute greatly to the support of the family, but he picked up tidy sums now and then for himself from livestock he kept on the place.

As we view the evidence there is no proof of an express...