King v. King

• Decision Date: 20 December 1918
• Citation: 207 S.W. 1,182 Ky. 665
• Parties: KING v. KING ET AL. [a1]
• Court: Kentucky Court of Appeals

207 S.W. 1

182 Ky. 665

KING v. KING ET AL. ^[a1]

Court of Appeals of Kentucky.

December 20, 1918

Appeal from Circuit Court, Logan County.

Action by V. J. King against D. M. King and others. Judgment for defendants, and plaintiff appeals. Affirmed, with directions.

J Verser Conner, of Louisville, and I. G. Mason, of Adairville for appellant.

Judge S. R. Crewdson, of Russellville, for appellees.

SAMPSON J.

D. M King died intestate and childless in October, 1915, while a resident of Logan county, Ky. leaving considerable personal property and a farm of 166 acres situated near Adairville. He was past 40 years of age, and left surviving him a widow, the defendant Mrs. Kate King. The plaintiff, Victoria J. King, is his mother, and defendant J. M. King is his father. After his death, J. M. King was appointed administrator of his estate and qualified and entered upon the discharge of the duties of the trust. In September, 1916, this action was instituted by V. J. King against J. M. King, administrator, J. M. King, and Katie King, widow of the deceased, for a sale of the aforesaid farm owned by D. M. King at his death, and a division of the proceeds. By the petition it is alleged in substance that the father and mother are the only heirs of D M. King; that he died intestate; that his wife, Katie King, is entitled to dower in the lands; that said lands are not susceptible of division without material impairment of the value of the whole and of each part thereof; that there are no other liens upon the lands, and all the debts of the estate have been paid from the personal property thereof; that defendants Katie King and J. M. King have had the use and rental of the farm for the year 1916; and that the reasonable rental of the farm for that year was $700, and the plaintiff V. J. King is entitled to one-half thereof, $350. J. M. King and Katie King filed separate answers by which the indivisibility of the lands, described in the petition, is denied, and it is affirmatively averred that the lands are susceptible of advantageous division. The answer of J. M. King also asserted a lien for purchase money, amounting to about $1,300 upon the lands, and averred that said tract is subject first to this lien debt, and then that Katie King is entitled to dower in one-third of the remainder, and that the residue should be divided equally between the plaintiff V. J. King, and the defendant J. M. King. He denied having used the lands or received rental therefrom for the year 1916, or at any time, and averred that the defendant Katie King had held and used a part of the lands only, as she had a right to do as widow, no dower having been assigned, and that the plaintiff, V. J. King, was privileged to have used and occupied a part of said farm had she desired to do so, but that she failed and refused to cultivate or use any part of said lands, and for that reason was not entitled to recover rents either of J. M. King or the widow, Katie King. Issue was joined upon the several questions presented.

The appellant, Mrs. V. J. King, did not give her deposition, and the deposition of J. M. King was, upon motion of the plaintiff, stricken. The plaintiff, however, offered the depositions of nine witnesses in support of her contention that the lands were not susceptible of advantageous division. Upon this point the defendants offered five witnesses. Mr. Barnard Johnson, who was called for the plaintiff, stated he lived on an adjoining farm to the lands in question, and, when asked whether the D. M. King farm was susceptible of division, he answered:

"Well, it just depends upon circumstances, but my opinion is that you might make arrangements to sell part of it and get something for it, and you might not."

He continued:

"Well, it would be a little unhandy for an outlet. That is the biggest trouble I can see about it. You could not get an outlet."

Further along in his deposition he said:

"No, sir; I cannot say it could not be done, because I do not know very much about the place, as I said before, except about the line coming out the road; never been on the place only just on that part of it from the road up to the house."

Mr. E. A. Keller was next called by plaintiff, and stated that he lived on the farm of Mrs. King in 1916, and cultivated a part of it. After telling about the crops which were raised on the farm in that year and the value thereof, he was asked if the farm could be divided into three parts without materially impairing its value, and he answered: "No, sir; I do not believe it could." He then stated, in answer to questions, the locations of the several houses and barns and timber plots.

Then came R. E. Crocker, a farmer, who stated that he lived next to the D. M. King farm, and had known it for some 30 years, or more. Answering the question whether it was susceptible of advantageous division, he said:

"That is a little hard question to answer. I tell you the truth about it though; I just do not think it could, not very conveniently. Now, I can give you my reason why I think so. If it was cut up into pieces that way--it is a little out of the way place to start with--and if you was to cut it up, there would be no competition if you wanted to sell it, it just joins one man on each side there. It don't seem to me to be the proper thing to do."

Mr. E. N. Taylor, a farmer, when asked if the lands could be divided into three equal parts without depreciating the value, said: "No, sir; I do not think it could."

The foregoing is the strongest evidence given for the plaintiff in support of her averment that the land was not susceptible of division. On the other hand, four persons were called by the defendants who had recently gone upon the lands for the purpose of studying the situation and making a tentative division thereof in three parts, after laying off enough to satisfy the lien debt of $1,300. These persons fixed the value of the land at about $45 per acre. They estimated that it would take about 30 acres of the tract to satisfy the $1,300 lien debt, and that would leave 136 acres to be divided into three parts. They then laid off 36 acres as dower, to the widow around the mansion house, including two barns, garden, orchard, etc., which was satisfactory to her. When these two pieces are lopped off, there is left approximately 100 acres to be divided between the plaintiff V. J. King, and her husband, defendant J. M. King. The widow, Katie King, stated that she had lived upon the farm for a number of years, had no other home, and desired to retain her dower interest in the lands and to continue to reside thereon. J. M. King also desired to have his share in kind. The four witnesses who examined the lands, one of them being a surveyor, gave it as their opinion that the land was easily susceptible of division without impairment to its value. They also stated that some years before a road had passed through this farm, and that the roadbed is still intact, and is used for the benefit of the farm as now constituted. The tentative division, which they suggested, would give each tract an outlet by this old road and make the whole easily accessible to the pike, which is a short distance away. A map showing the situation and general outline of the tract is made a part of the record.

The trial court in its judgment directed a division of the lands, in kind, after a sufficiency thereof had been sold to satisfy the lien debt of J. M. King. It denied plaintiff's claim for rents and adjudged the cost largely against her.

It is a well-established rule that where lands are susceptible of division, without material impairment of their value, a division thereof will be had, if desired by the owners rather than a division of the proceeds after a sale for that purpose. The rule is stated...