Tarr v. Tarr's Ex'r

• Decision Date: 24 May 1935
• Citation: Tarr v. Tarr's Ex'r, 259 Ky. 638, 82 S.W.2d 810 (Ky. Ct. App. 1935)
• Parties: TARR v. TARR'S EX'R.
• Court: Kentucky Court of Appeals

82 S.W.2d 810

259 Ky. 638

TARR v. TARR'S EX'R.

Court of Appeals of Kentucky

May 24, 1935

Rehearing Denied June 21, 1935.

Appeal from Circuit Court, Bourbon County.

Suit by the executor of the will of Mary K. Tarr, deceased, against Fisher Tarr. From an adverse judgment, defendant appeals.

Reversed with directions.

Dickson Bradley & Blanton, of Paris, for appellant.

D. D Cline, N.C. Fisher, and Gene Lair, all of Paris, for appellee.

THOMAS Justice.

Mary K Tarr died testate while a resident of Bourbon county in March, 1933. In due time her will was probated in the Bourbon county court and this controversy involves the sharp and narrow question as to what property was embraced in two clauses of her will saying: "I devise to Fisher Tarr, brother of my deceased husband, my lumber yard on Main St., in Paris, Kentucky, with office and other buildings thereon owned by me," and "I will that my Bourbon Lumber Company stock be sold. Only the lumber Yard and buildings thereon do I will Fisher Tarr." Other portions of her will made specific devises and contained a residuary clause, and one conferring powers on her executor.

This controversy is between Fisher Tarr and the executors and other devisees concerning whether or not a brick business building on the corner of the lumber yard lot, which was not used in or in connection with the lumber business that was being conducted on other portions of that lot, passed to appellant and defendant below, Fisher Tarr, under the inserted clauses of Mrs. Tarr's will. The learned trial judge first concluded that the brick store building was embraced by the above language of the will making a devise to Fisher Tarr; but before entering judgment on that tentative conclusion he changed his mind and finally held that the brick store building did not pass to Fisher Tarr under Mrs. Tarr's will, and entered judgment accordingly, to reverse which he prosecutes this appeal.

The controversy was precipitated because of a state of facts developed by pleadings, and testimony introduced at the hearing, but which were objected to by appellees on the ground that the language of the will embodying the two involved clauses was such as did not call for extrinsic and parol proof in order to ascertain the intention of testatrix at the time she employed it and which was and is her own, since her will is a holographic one. Those facts, so developed, were and are: That the testatrix acquired the property in 1906 (which is a lot at the corner of the junction of Main street and Clay avenue, in Paris, Ky. and being 150 feet on Main street, and 250 feet on Clay avenue) from trustees of the estate of James M. Thomas, then deceased, the consideration being $5,005, then paid in cash, and which is recited in the deed. The description of the lot as contained in the deed, after locating it at the junction of the two streets that we have mentioned and giving its dimensions, also said: "Being the same property lately occupied as a lumber yard." Long prior to the death of James M. Thomas, he conducted a lumber and building material business on the lot and at the junction of the two streets that we have referred to he had constructed a frame office building which he used for that purpose until he died a short time before his trustees conveyed the property to testatrix.

For a long time prior to the making of that deed, T. H. Tarr, the husband of testatrix, was engaged in the same business of handling building material in competition with Thomas, but which was located in a different part of the city; that after testatrix acquired the Thomas lot, which had come to be known as the "lumber yard property" (from the fact of its having been used and devoted to that purpose by Thomas), the husband of testatrix moved the location of his lumber and building material business from where he had theretofore conducted it to the Thomas lot, and there is testimony that for a short while thereafter he used as his office the same frame building that had been erected and so used for that purpose by Thomas. But whether the latter fact be true or not, the testimony showed that shortly after the husband located his business on the Thomas, or what had come to be known as the lumber yard lot, he tore away the frame building on its corner at the junction of the two streets mentioned and erected on the same site a two-story brick building, the first floor of which has since been used as a retail grocery store, while the second one was equipped for residential purposes and which was at first occupied by Mr. and Mrs. Tarr as their residence. Following that, or during the construction of the brick building, Mr. Tarr constructed a frame office building on a different part of the Thomas lot, which he and others thereafter used in the continued operation of the business on all portions of the Tarr lot except the surface that was occupied by the brick building at the corner. However, some eight or ten years ago a frame building used in connection with the lumber yard business was constructed with a half hip roof the comb of which was attached to the outer brick wall of the store building.

Mr Tarr died in the year 1914, and after his death the lumber business which he was then operating on the Thomas lot was incorporated, with testatrix owning one-fourth of the stock and others owning the remaining three-fourths, the name of the corporation being "The Bourbon Lumber Company." Testatrix did not convey the lot or any portion of it to the corporation, but rented to it all of the ground it occupied, and rented the brick store building to another; the corporation not using it or any...