Meredith v. Meredith

• Decision Date: 09 December 1921
• Citation: 235 S.W. 757,193 Ky. 192
• Parties: MEREDITH ET AL. v. MEREDITH.
• Court: Kentucky Court of Appeals

235 S.W. 757

193 Ky. 192

MEREDITH ET AL. v. MEREDITH.

Court of Appeals of Kentucky.

December 9, 1921

Appeal from Circuit Court, Allen County.

Suit by J. E. Meredith against W. R. Meredith and another. From a judgment sustaining a general demurrer to answer of defendant W. R. Meredith, and a motion to dismiss the intervening petition of Angeline Meredith, and adjudging plaintiff to be the owner of certain land, and to be entitled to certain royalties under a lease, W. R. Meredith and Angeline Meredith appeal. Reversed and remanded.

Gilliam & Gilliam, of Scottsville, for appellants.

Oliver & Dixon, of Scottsville, for appellee.

CLARKE J.

The appellee, J. E. Meredith, filed this action in equity against his brother, W. R. Meredith, and the Indian Refining Company seeking to recover of the latter the whole of the royalties due under an oil and gas lease which J. E. Meredith, W. R Meredith, and their mother, Angeline Meredith, in December 1917, jointly executed upon 167 1/4 acres of land in Allen county, and seeking as against W. R. Meredith a judgment that plaintiff was the sole owner of the eastern half of the 167 1/4-acre tract of land upon which alone the producing oil wells, 11 in number, were located, and entitled to all of the royalties. As the basis for this relief, he states in his petition that he and the defendant W. R. Meredith were the only heirs at law of their father, W. E. Meredith, who died intestate many years theretofore the owner of the 167 1/4-acre tract of land; that in September, 1914, they divided this land and executed deeds to each other, conveying to plaintiff the fee-simple title to the land lying east of a described division line, and to defendant a similar title to the land lying west of that line; and "that each of the deeds were made with due respect and regard to the life estate of the mother, Angeline Meredith, and with the understanding that she had the right to occupy all of the said land and use the same for her benefit as the widow of W. E. Meredith, deceased, so long as she lived; and this division was made with her consent and knowledge and agreement, in order that each of said heirs might do whatever improvement they desired upon their respective tracts of land without having to wait until her life estate was spent before knowing where their interests would be."

A copy of the deed to plaintiff, executed by defendant W. E. Meredith and his wife, and to which Mrs. Angeline Meredith is not a party, is filed and made a part of the petition. It purports to convey to plaintiff, in consideration of $500 in hand paid, the fee-simple title to that portion of the 167 1/4-acre tract of land lying east of the agreed division line, and contains no mention of the fact which the petition admits, that the true consideration therefor was an agreed division among all parties interested in the land that defined the interest of the mother to be a life estate in the whole tract, and simply divided the remainder between the two sons for their convenience in making desired improvements during their mother's life.

The refining company filed answer, admitting its liability under the lease to Angeline Meredith, J. E. Meredith, and W. R. Meredith jointly for the value of one-eighth of the oil produced on the whole tract, which it offered to pay into court or to the lessors if they would agree how it should be paid, or as the court might adjudge.

W. R. Meredith filed an answer and counterclaim in which he admits the facts, but denies the legal conclusions of the petition, and, in addition, sets out in full the entire agreement entered into by plaintiff and defendant and their mother by which the land was divided, and their prior respective interests therein as the surviving heirs and widow of W. E. Meredith; that this agreement was the true and only consideration for the deeds which plaintiff and defendant executed and delivered to each other; and "that, by mutual mistake and oversight on the part of plaintiff and defendant and their mother, the said Angeline Meredith, the entire agreement was not in writing and expressed in said deed." The agreement as set out is, in substance and effect, that the mother was to have a life estate in the whole tract, with the right during her lifetime to all ordinary rents and profits accruing therefrom, but that, in the event of oil or gas production, the royalties were to be divided equally among the three from whatever part of the land the oil or gas should be produced; that the division line between the lands plaintiff and defendant were eventually to receive was established simply that they might know where their respective shares in the whole tract would be, so that they might improve same as they desired during their mother's life; that the deeds were intended and understood by all parties as a division merely of plaintiff's and defendant's remainder interest in the land subject to their mother's agreed life estate in the whole tract and not as giving them any present interest therein; that their occupancy during the mother's lifetime was subject to her consent and control; that the oil and gas lease in question was executed some years after the agreed division, and the execution of the deeds by them and their mother jointly upon the whole tract without reference to the division, and in express recognition of their joint right to any profits or royalties that might accrue from oil or gas development on any part of the entire tract.

Mrs. Angeline Meredith filed intervening petition to be made a party, the material allegations of which are substantially the same as those contained in defendant's answer and counterclaim as set out above. Both pray that plaintiff's petition be dismissed; that they each be adjudged entitled to one-third of the royalties due from the Indian Refining Company, and that may hereafter accrue from the lease on the whole tract, and generally for all proper and equitable relief to which they may be entitled.

The plaintiff entered a general demurrer to the answer of defendant W. R. Meredith, and a motion to dismiss the intervening petition of Angeline Meredith, both of which the court sustained, and upon their refusal to plead further the plaintiff was adjudged to be the absolute owner of that portion of the 167 1/4 acres lying east of the division line, and to all of the royalties due or to become due under the lease; and W. R. Meredith and Angeline Meredith were adjudged "to have no interest whatever in any part of the royalties from said oil productions from said tract of land either now or hereafter"; and they have appealed.

In justification of the chancellor's judgment, counsel for plaintiff only cite and rely upon cases from this court, and others which hold that the only right of possession the widow has in lands of her deceased husband prior to the assignment of homestead or dower is that conferred by section 2138 Kentucky...