Martin v. Barnhill

• Decision Date: 29 March 1900
• Parties: MARTIN et al. v. BARNHILL et al. [1] KING v. SAME.
• Court: Kentucky Court of Appeals

56 S.W. 160

MARTIN et al. v. BARNHILL et al. ^[1]

KING v. SAME.

Court of Appeals of Kentucky.

March 29, 1900

Appeal from circuit court Daviess county.

"Not to be officially reported."

Actions by J. V. Martin and others and by Joseph Barnhill's executor against R. M. Barnhill and others. Judgment construing will, and the plaintiffs and Orpha King appeal. Reversed.

Sweeney Ellis & Sweeney, for appellants.

Miller & Todd, for appellees.

BURNAM J.

This appeal involves the construction of the first clause of the will of Joseph Barnhill, which is as follows: "I will and bequeath to my beloved wife, Siberia A. B. Barnhill after my burial expenses and just debts are paid, all of my property, consisting of lands, stocks, moneys, bonds, notes etc., household and kitchen furniture, to have and to hold and to dispose of as her own property, as long as she shall live, and after her death to be equally divided among my children, or their legal representatives." By the second clause of his will he bequeathed to his children a policy of insurance on his life for $2,000, and appointed his son R. M Barnhill and his son-in-law R. H. White executors. The executors instituted a suit in the Daviess circuit court to have the will construed, the widow of Joseph Barnhill and his children and heirs at law being made defendants. It was alleged in the petition that testator died possessed of a tract of about 74 acres of land, certain household and kitchen furniture, stock, farming implements, and provender; that previous to his death he had sold and conveyed 55 1/3 acres of his land to the plaintiff R. M. Barnhill in consideration of $1,106.62, a part of which was paid cash in hand, and two notes executed for the residue of the purchase money, each for $368.83, and due in one and two years, respectively, bearing interest at 6 per cent., and which remained unpaid at the death of their testator; that these notes were in possession of testator's widow, who also had possession of all of the residue of his property, including land and personalty; that she was claiming to be entitled to a life estate in the land, and to absolute title of all of the personalty, including the notes, moneys, and household and kitchen furniture; and that some of the defendants were claiming that she was only entitled to possession of the personal property, and to the use thereof, during her life, and that they were entitled to the remainder at her death. And the court was asked to determine what estate the widow took under the will in the personalty, and what were the duties of the executors with reference thereto. No answer was filed by either of the defendants, and at the June term, 1896, it was adjudged that the widow, Siberia A. B. Barnhill, "had an estate for life in all of the real and personal property bequeathed by her deceased husband, and was entitled to the possession and unrestricted use of all of the personalty; that she could not sell or give it away except for her own use, but as to the manner of such use she could exercise her own judgment, and for such use could make any disposition of any part of the personalty that she might desire, and, if in her judgment her necessity or comfort should require it, she had the right to consume or exhaust all of the personalty." And the executors were directed to deliver to the widow all of the personal estate, after the payment of the funeral expenses and costs of administration, and if, at the death of the widow, any part of the personalty should remain undisposed of, it would pass under the will of testator to his children, or their legal representatives. On the 10th day of August, 1896, the widow of Joseph Barnhill executed a written contract with her son R. M. Barnhill which recited that since the death of her husband her son R. M. Barnhill had taken care of and provided for her,--furnished her with a home, food, raiment, and medical attention,--and that he had agreed that he would continue to do so during the balance of her life, and to provide for her comfort and pleasure at all times, and that in consideration of this assumption she had surrendered the two notes, of $368.83 each, which had been executed by him in consideration of the land sold him by his father, and a note for $369, subject to a credit of $144, and...