Kentucky Lumber Co. v. King

• Decision Date: 27 November 1901
• Citation: 65 S.W. 156
• Parties: KENTUCKY LUMBER CO. v. KING. [1]
• Court: Kentucky Court of Appeals

65 S.W. 156

KENTUCKY LUMBER CO. v. KING. ^[1]

Court of Appeals of Kentucky.

November 27, 1901

Appeal from circuit court, Whitley county.

"Not to be officially reported."

Action by H. C. King against the Kentucky Lumber Company to recover damages for injury to land. Judgment for plaintiff, and defendant appeals. Reversed.

Tye &amp Denham and R. D. Hill, for appellant.

C. W Lester, for appellee.

HOBSON J.

Appellee H. C. King, instituted this action, alleging that he owned a tract of land on the Cumberland river, near Williamsburg that appellant, the Kentucky Lumber Company, owned a mill and dam on the river above his property, and had raised the dam higher than it was authorized to maintain it, and by reason of this had thrown the current of the river against his land washing it off and greatly injuring the property. Appellant denied the allegations of the petition, and also pleaded specially that appellee had received the property from his father, A. C. King, by devise, and that in the devise the testator had imposed upon the devisee this condition: "In accepting this bequest, he is to put into my estate, as a part thereof, the house and lot now owned and occupied by him as a residence; same being situated in the town of Williamsburg, Kentucky." It was alleged that appellee had not put into the estate of the testator the house and lot referred to, and that, by his failure to comply with the terms of the devise, he had acquired no title to the property covered by it. Whether the clause quoted created a condition precedent or subsequent, or how far a stranger, when sued for a tort to the property devised, could rely on this clause, we need not determine. It appears from the proof that the house and lot referred to were appraised to appellee, who was the executor of the will, as part of the estate of the testator. It also appears that he had sold and conveyed it as executor under the will, and had received $850 for it. After the answer was filed in this case, as executor he made a settlement with the county court, and included the $850 in the settlement, although he had previously used the money for his individual purposes. When appellee put the house and lot in the appraisement as part of the estate of the testator, and then sold and conveyed it as executor, joining in the deed also personally, he unequivocally made the fund received from the house and lot a part of the testator's estate, and was responsible for it as executor; and, when he subsequently included it in his settlement, he only did what the court would otherwise have required him to do. The deed referred to contains these words: "This property is the same property originally owned by the said grantor, H. C. King, and the same property that is mentioned in the will of A. C. King, deceased, as the property which was to be turned over to the said decedent's estate by the said grantor, H. C. King, in consideration of a bequest made by the said decedent by his will, whereby a part of the said decedent's home property was devised to said H. C. King. As the said H. C. King was made the executor of the said will, and the title to the same (the above-referred to estate) being vested in him in his individual capacity, no deed to convey the same to the said estate, or to him as executor thereof, was made; and the property being in reality property of the said estate, and the title being in him personally, he makes...