Holloway v. Brown

• Decision Date: 25 October 1918
• Citation: 205 S.W. 925,181 Ky. 716
• Parties: HOLLOWAY v. BROWN.
• Court: Kentucky Court of Appeals

205 S.W. 925

181 Ky. 716

HOLLOWAY v. BROWN.

Court of Appeals of Kentucky.

October 25, 1918

Appeal from Circuit Court, Spencer County.

Suit by Bessie Arnold Brown, by her husband and guardian, George L Brown, against E. T. Holloway. From judgment rendered defendant appeals; plaintiff prosecuting cross-appeal. Affirmed both on original appeal and cross-appeal.

Samuel K. Baird, of Taylorsville, for appellant.

Edwards Ogden & Peak, of Louisville, Beard & Rives, of Shelbyville and L. W. Ross, of Taylorsville, for appellee.

CLAY C.

In the year 1890, Wm. G. Holloway died intestate, a resident of Spencer county and the owner of a farm of 225 acres in that county. He was survived by his widow and five children, Edward T., Lemuel, Theodore, Walter, and Lillie. Lillie afterwards married Thompson Arnold, by whom she had one child, Bessie Arnold. At the time of W. G. Holloway's marriage, his wife had a child by the name of John Neal. Mrs. Holloway died in the year 1895. Lillie Arnold died on November 14, 1898, leaving a will by which she devised her property to her four brothers and her half-brother, John Neal, in trust for her daughter Bessie, but provided that, if her daughter Bessie should die at any time without issue, her estate should go to her five brothers named as trustees. Theodore Holloway died on December 28, 1898, intestate and without issue. E. T. Holloway qualified as administrator of his father, Wm. G. Holloway, and settled the estate. He also qualified as executor of his sister Lillie Arnold, and as trustee under her will of her daughter Bessie, and also as administrator of Theodore. On February 21, 1899, E. T. Holloway, suing in his own right and as executor of Lillie Arnold and as trustee of her daughter Bessie Arnold and as administrator of Theodore Holloway, together with Lemuel L. Holloway and John Neal, brought suit against Walter Holloway, an infant over 14 years of age, and Bessie Arnold, then an infant under 14 years of age, to sell the 225 acres of land owned by Wm. G. Holloway, on the ground that the plaintiffs and defendants owned a joint estate in possession, and that the land could not be divided without materially impairing its value or the value of plaintiffs' and defendants' interests therein. The land was sold, and John Neal became the purchaser. He then assigned a three-eighths interest to E. T. Holloway and a three-eighths interest to Walter Holloway, retaining a two-eighths interest for himself. The sale was confirmed, and a deed made conveying the land to the three purchasers in conformity with the above assignment. In 1904, John Neal died, leaving a will by which he devised his interest in above tract of land to his three brothers, E. T., Lemuel L., and Walter. In 1905, Walter S. Holloway died, leaving a will by which he devised all of his property, after the payment of his debts, to his two full brothers, E. T. Holloway and Lemuel L. Holloway, and to his half-brother, John A. Neal, equally. Lemuel L. Holloway afterwards died intestate, leaving a widow, Willie E. Holloway, and two infant children, Carl and Elsie Lee Holloway. E. T. Holloway now has the paper title to the entire 225-acre tract.

On January 27, 1915, Bessie Arnold Brown, through her husband and guardian, George L. Brown, brought suit against E. T Holloway to recover her 1/5 interest in the 225 acres of land, which she received under the will of her mother, and her 2/45 interest therein, which she inherited from her uncle Theodore, both on the ground that the judgment of sale was void, and that E. T. Holloway, who was then her trustee, was disqualified from making the purchase, and thereafter held the land in trust for her. About the same time she had the old suit, in which the sale was made, redocketed, and asserted her claim in that action. The two suits were consolidated. On final hearing, it was adjudged that Bessie Arnold Brown recover of E. T. Holloway her 1/5 interest in the land devised to her by her mother and her 2/45 interest therein, inherited from her uncle Theodore, together with the reasonable rental value of such interests with 6 per cent. interest thereon from the close of each year; the said rental value, however, to be credited by Bessie Arnold Brown's proportionate part of any permanent improvements placed on the land, and her proportionate part of any taxes paid by E. T. Holloway, together with the interest thereon, from the time of such payments until discharged by the rents. It was also adjudged that the 1/5 interest in the land was chargeable with the debts of her mother, Lillie B. Arnold, legally proven and paid by the defendant, and her 2/45 interest in said land inherited from her uncle Theodore should be charged with the legal debts of Theodore, which were paid by E. T. Holloway, until discharged by rents; but that, if the rents were insufficient for that purpose, the excess of the legal debts of Lillie Arnold should become a charge on 1/5 of the land, while Bessie Brown's proportionate part of the excess of the legal debts of Theodore Holloway should become a charge on her 2/45 of the land. It was also adjudged that Bessie Arnold Brown had no interest in the estate of W. S. Holloway. The...