Thomas v. Scott

• Decision Date: 18 March 1903
• Citation: 72 S.W. 1129
• Parties: THOMAS et al. v. SCOTT et al.
• Court: Kentucky Court of Appeals

72 S.W. 1129

THOMAS et al. v. SCOTT et al.

Court of Appeals of Kentucky.

March 18, 1903

Appeal from Circuit Court, Bourbon County.

"Not to be officially reported."

Action by George Scott and another against Allen M. Thomas and others. Judgment for plaintiffs, and defendants appeal. Reversed.

McMillen & Talbott and T. N. Lindsey, for appellants.

H. C Howard and Buckner Clay, for appellees.

PAYNTER J.

Louisa A. Keiningham departed this life in September, 1890, leaving a will, which, among others, contained the following provisions:

"If Eliza Baker (col.) stays with and takes care of me as long as I live, I wish my executors to give her five shares of my Northern Bank Stock for life, the dividends to be paid her by her trustee, and after her death go to pay taxes on her brick house on Pleasant Street; also on the two houses given to servants on Georgetown Hill. The house and lot on Georgetown road to be given to Ellen Hurndon's four girls, namely, Bettie, Laura, Carrie and Mary Eliza Hurdon.

"The lot adjoining, with two storied frame house on it, given to Mary Turner (col.) for her sole use and benefit, her husband, who she is separated from, to have no interest in it, and at her death, without children, to go to her sister, Eliza Baker and brother, George Scott. These were the children of my faithful servant, William Scott, who when freedom came never left me, and never did or would receive one cents of wages.

"All the rest of my estate, including home place, after payment of my debts, if any, with charges and expenses of administration, including a plain monument for my grave, I give to my dear brother, Landon A. Thomas."

At the time of her death the testatrix was the owner of the lots shown by the following plot:

(Image Omitted)

The lot designated on the plot as the "Herndon lot" was devised to the Herndon girls; a house of two stories was on the lot designated as the "Mary Turner lot." The lot designated as the "Keiningham lot" is what is known as the "vacant lot" in this record.

After the death of the testatrix, the widow and heirs of Landon A Thomas, the residuary legatee, sold it to a party, and afterwards it was divided into lots, and upon it seven houses were built. Mary Turner died in 1891. George Scott and Eliza Baker, who took the remainder interest in the lot devised to Mary Turner, instituted this action to recover of appellants the several lots in their respective possessions. The right to recover depends upon the construction of the clause of the will devising the lot to Mary Turner. The testatrix bought the property consisting of the Mary Turner lot and the vacant lot from James O'Keefe, after doing which she placed Mary Turner in the house which was situated on what is known as the "Mary Turner lot." After this was done, Pete Mason, desiring to use the vacant lot, approached the testatrix with a view of obtaining her permission to fence and use it. She referred him to Mr. Alexander, her agent, who gave Mason permission to erect the fence around the lot, except on the back part of it, where there was a stone fence. There seems to have been an old fence between the Mary Turner lot and the vacant lot, which was either rebuilt or repaired by Mason, inclosing the vacant lot. The testimony conduces to show that the testatrix claimed the vacant lot as her own after she had placed Mary Turner in possession of the house. She often referred to it as "my lot," and to the other one as "Mary Turner's lot." The evidence is conclusive that the property purchased from O'Keefe was divided by a fence as represented on the plot, and the small lot is the one that testatrix referred to as the "Mary...