Usher's Ex'r v. Flood

• Decision Date: 22 January 1891
• Citation: Usher's Ex'r v. Flood, 17 S.W. 132 (Ky. Ct. App. 1891)
• Parties: Usher's Ex'r v. Flood.
• Court: Kentucky Court of Appeals

17 S.W. 132

Usher's Ex'r v. Flood.

Court of Appeals of Kentucky.

January 22, 1891

On rehearing.

Action by R. J. Usher's executor against Michael Flood to recover certain land. Judgment for defendant. Plaintiff appeals. Reversed for further proceedings. For prior report see 83 Ky. 552.

Usher wrote to Flood, who had long lived with him, and whom he had treated as his son, that on his (Flood's) marriage he would give him a house and furnish it. After the marriage Usher built the house, and placed Flood in possession, which possession Flood retained until Usher's death. It was fully established that the consideration for which Usher gave the house was valuable services rendered to him by Flood during a long period of years.

Pryor J.

We have again examined carefully the case, with the testimony, in which the opinion in Usher's Ex'r v. Flood, 83 Ky. 552, was rendered. That Usher gave to the appellee the house and lot, and placed him in possession, is well established, and the only reason the testator had for making this donation was in consideration of the valuable services rendered to him by the appellee during a long period. That the testator regarded his services as more valuable than the compensation received is manifest, as nothing else could have prompted him to make such a liberal allowance to the appellee. He knew what services the appellee had rendered and has himself fixed the compensation to be made, and we are not disposed to allow less than the sum fixed by one who knew more of his obligation to the appellee than all the witnesses on both sides of the controversy. It is both just and equitable to carry out the plain purpose of the testator, and the fact of the absence of a writing passing the title should not prevent the chancellor from allowing a sum equivalent to the value of the house and lot, and this the chancellor having done, his judgment to that extent will not be disturbed.

There was no demand made of payment of the personal representative or affidavit as to the justice of the claim, but the case has proceeded as if the parties to the original transaction were living, and a judgment rendered. No objection seems to have been made until the question was before the commissioner and, as the testimony is all in showing the existence and justice of the claim, no other proof is necessary, but the affidavit of the claimant must be made as required before the personal representative...