Maynard v. Maynard

• Decision Date: 11 December 1917
• Citation: 198 S.W. 910,178 Ky. 332
• Parties: MAYNARD ET AL. v. MAYNARD.
• Court: Kentucky Court of Appeals

198 S.W. 910

178 Ky. 332

MAYNARD ET AL. v. MAYNARD.

Court of Appeals of Kentucky.

December 11, 1917

Appeal from Circuit Court, Pike County.

Action by Harman Maynard and others against Anna Maynard. Judgment for defendant, and certain plaintiffs appeal. Affirmed.

Cline &amp Steele, J. D. Kash, W. K. Steele, and J. S. Cline, all of Pikeville, for appellants.

May &amp May, of Prestonsburg, and S. M. Cecil, of Pikeville, for appellee.

CLARKE J.

Thomas V. Maynard died intestate, a resident of Pike county, the owner and in possession of a tract of land worth about $6,000. He left surviving him, as his only heirs, his widow Anna Maynard, the appellee, and two brothers and two sisters, the appellants. Shortly after his death his brothers and sisters instituted this action against the widow for a partition of his farm. The widow answered, asserting her right of dower in the land, and, by way of counterclaim, alleging that of the purchase price she had furnished to her husband $1,000, which was used by him in discharging three purchase-money lien notes against the land, aggregating $1,000; that he had had these notes transferred and assigned to her by the owner thereof, and that he had delivered them to her as an evidence of her loan to him and to secure its repayment to her; that the notes had become lost, and she was unable to file them; and that no part thereof had even been paid. A demurrer to the counterclaim filed by plaintiffs having been overruled, plaintiffs filed a reply traversing the allegations thereof. The case was referred to the master commissioner to hear, and reduce to writing, proof upon all issues raised by the pleadings. Upon proof heard by the master, filed with his report, he allowed the widow her claim of $1,000, with interest, as a lien upon the land, and reported that, after the payment of this lien debt and allotment to the widow of dower therein, plaintiffs were each entitled to an undivided one-fourth interest in same, and that, one of the plaintiffs, Harman Maynard, having sold to the defendant his undivided interest in the land since the institution of the action, the defendant was entitled thereto. To this report plaintiffs filed exceptions, and the case was submitted on the exceptions and the whole case, whereupon the court entered judgment in conformity with the master's report adjudging to defendant a lien upon the land for $1,000, ordering the sale of a sufficiency thereof to satisfy the lien, and that the remainder of the land, after allotment of dower to the defendant, be divided equally among the four plaintiffs, the defendant, Anna Maynard, to take the share of plaintiff Harman Maynard, which she has purchased of him since the suit was instituted. From this judgment the plaintiffs Ben Maynard, Virgie Vicars, and America McCombs have appealed.

Two grounds are relied upon for reversal: First, that defendant did not establish by the proof the validity of the claim for $1,000, with a lien upon the land, asserted by her; and, second, that even if the proof did establish the validity of this claim, the court was without authority to allow it, and the judgment was void because the claim was not verified, as claims against decedent's estate are required to be by sections 3870-3874, Kentucky Statutes, inclusive.

1. Defendant proved by numerous witnesses that her husband, Thomas V. Maynard, from the time of the payment of the lien notes in question to the time of his death, acknowledged that his wife had furnished him the money derived from a sale of property in Johnson county owned by her to discharge these notes; that the notes had been assigned to her; and that she had a lien against the land to secure their payment. The only proof introduced by plaintiffs in contradiction of this testimony was the evidence of witnesses, who testified that upon different occasions Thomas V. Maynard had, not in the presence of defendant, made statements that he was out of debt, and that he had paid these notes with his own money. This evidence of self-serving statements made by the deceased was clearly incompetent, but the defendant did not object to its introduction, and even if we consider all of this evidence, there is a clear preponderance in favor of the chancellor's finding; and we are not, therefore, authorized to disturb it.

2. Sections 3870 to 3872, Kentucky Statutes, provide that no action shall be brought, or recovery had, on any demand against a decedent's estate until after demand of payment has been made of the personal representative, accompanied by the affidavits therein prescribed. Section 3874, Kentucky Statutes, provides that no demand against a decedent's estate shall be paid by his personal representative, or allowed as a credit by any commissioner or court, which is not verified by affidavit as required...