Reno v. Blackburn

• Decision Date: 13 March 1903
• Citation: 72 S.W. 775
• Parties: RENO et al. v. BLACKBURN.
• Court: Kentucky Court of Appeals

72 S.W. 775

RENO et al. v. BLACKBURN.

Court of Appeals of Kentucky.

March 13, 1903

Appeal from circuit court, Carlisle county.

"Not to be officially reported."

Action by Margaret Reno and others against Cal Blackburn. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

J. M Nichols & Son, for appellants.

Gus Thomas, for appellee.

SETTLE J.

Appellants Margaret Reno and others, claiming to be of kin to and the only heirs at law of Lloyd Pickett, deceased, brought this action in the Carlisle circuit court to recover of the appellee, Cal Blackburn, 50 acres of land lying in Carlisle formerly Ballard, county. It appears from the record that the land was formerly owned by Lloyd Pickett, who was residing thereon at the time of his death, which occurred in 1872. It further appears from the record that Lloyd Pickett left no children, but that his wife survived him. In 1874 she married the appellee, Cal Blackburn, with whom she lived until her death in March, 1900. It is averred in the petition that Lloyd Pickett died intestate, and that appellee is wrongfully in the possession of the land left by Lloyd Pickett, upon whose death, it is claimed, it descended under the statute to appellants, and that they are now the owners and entitled to the possession thereof. The answer of appellee, as finally amended, denies that appellants are the owners or entitled to the possession of the land, and avers that Lloyd Pickett left a will, which was admitted to probate in the Ballard county court, and duly recorded in the Ballard county court clerk's office, but that the courthouse and clerk's office in that county were destroyed by fire in 1880, for which reason the will cannot be produced. That by its terms the land was devised absolutely to the testator's wife who from his death, in 1872, to her own, in 1900, a period of more than 29 years, continuously had and held the actual possession thereof, claiming it adverse to all the world, and that appellants, who resided near her, had notice of the nature of her title and the character of her possession. And appellee also pleads and relies on the statute of limitation to defeat appellants' action. The reply filed by appellants traverses the averments of the answer, and charges that the wife of Lloyd Pickett occupied the land in controversy only as a homestead, and this averment is denied by the rejoinder. The lower court, upon these issues and the proof taken by the parties, rendered judgment dismissing the petition, and allowing appellee his costs.

The evidence furnished by the depositions tends to show that a will was executed by Lloyd Pickett. Three witnesses testified that they were present when it was written. These witnesses also agreed that Lloyd Pickett's wife was the sole devisee under the will, though none of them could give the precise terms of the will, or tell what character of estate was given her in the land. It is not clear, either, who the attesting witnesses were.

There is also some evidence in the record tending to show that the will was carried, after the death of Lloyd Pickett, to Blandville, the county seat of Ballard county, and delivered to Corbett, the county clerk, for record. The witness, Sam who testified to this fact, seemed to have the impression that he paid for the recording of the paper when it was handed by him to the clerk, and that the money for the purpose was furnished him by one Wiley Dicus. A small book containing many entries of various kinds was filed with the deposition of one of the witnesses, and by him identified as the former property of Wiley Dicus, who is dead, and the following entry in this book was...