Voss v. Stortz

• Decision Date: 02 November 1917
• Citation: 197 S.W. 964,177 Ky. 541
• Parties: VOSS ET AL. v. STORTZ ET AL. [a1]
• Court: Kentucky Court of Appeals

197 S.W. 964

177 Ky. 541

VOSS ET AL. v. STORTZ ET AL. ^[a1]

Court of Appeals of Kentucky.

November 2, 1917

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Suit by Freda V. Stortz and husband against C. W. Voss and others. Judgment for plaintiffs, and defendants appeal. Affirmed in part, and reversed in part, with directions to dismiss the petition.

Ernst H. Neuman, of Louisville, for appellants.

J. T A. Baker, of Louisville, for Freda and Henry Stortz.

Otto and George Everbach, both of Louisville, for E. Waldburger.

W. L Doolan, of Louisville, for Margaret Green.

CLAY C.

Anna Voss, wife of C. W. Voss, Sr., died in the year 1906, the owner of two pieces of property, one located on Fifteenth street, and the other on Southgate street, in the city of Louisville. The Fifteenth street property was conveyed to her in the year 1888 and after her marriage, with the power to dispose thereof by will. The Southgate street property was conveyed to her as general estate in the year 1889. At the time of her death she left a will dated November 10, 1888, by which she devised to her husband the Fifteenth street property, but made no disposition of the Southgate property. Her will was not probated until March, 1912. After her death her husband, C. W. Voss, Sr., took possession of both tracts and continued to use them and rent them out for several years. When Mrs. Voss died there were two mortgages on the property, one for $500, covering only the Southgate street property, the other for $2,100, covering both the Fifteenth street property and the Southgate street property. Surviving Mrs. Voss were three children, Freda Voss, who subsequently married Henry Stortz, C. W. Voss, Jr., and Arthur Voss.

Charging that her mother died intestate as to the Southgate street property, and that her father by reason of his election taken under her mother's will was precluded from asserting curtesy therein, Freda Stortz and her husband brought this suit against her father and brothers to have the Southgate property sold, for an accounting of rents, and to have the mortgage debts adjudged to be the debts of her father. The mortgagees were made parties and set up their liens. The case was referred to the commissioner to hear proof and report the amount of rents and profits received by C. W. Voss, Sr., and whether the mortgages were given to secure his debts or those of his wife. The commissioner fixed the amount of rents collected at $1,185.67, subject to a credit of taxes paid amounting to $269.19, thus leaving a balance of $916.48. The claim of C. W. Voss, Sr., for repairs and improvements amounting to $292.43, was rejected. The commissioner further reported that the mortgages in question were given to secure the debts of C. W. Voss, Sr. On final hearing it was held that C. W. Voss, Sr., had no interest in the Southgate street property, but that this property was owned jointly by Freda Stortz and her two brothers, and could not be divided without materially impairing its value. Plaintiff and her two brothers were given judgment against their father for $916.48, with 6 per cent. interest from March 23, 1916. Chas W. Voss, Jr., was charged with rents amounting to $460, with 6 per cent. interest from September 14, 1912, less his one-third interest in same. The mortgages were adjudged liens on the two pieces of property. The property was then directed to be sold. Sale was had and C. W. Voss, Sr., became the purchaser. C. W. Voss, Sr., C. W. Voss, Jr., and Arthur Voss appeal.

1. Appellees move to dismiss the appeal on the ground that C. W. Voss, Sr., by his purchase of the property sold by the commissioner, acquiesced in the validity of the judgment, and thereby waived his right to prosecute the appeal. It is well settled that acquiescence in order to bar the right of appeal must be clear, unconditional, voluntary, and absolute. Todd's Ex'r v. First National Bank, 173 Ky. 60, 190 S.W. 468. The case involved not only appellant's right of curtesy in the Southgate street property, but his liability for rents and his proportionate part of the mortgage debts. He resisted in every possible way, not only the sale of the property, but the claims asserted by his daughter. When his contentions were not sustained and the sale was ordered, he purchased the property for the protection of his own interests. His purchase under these circumstances was not such an unconditional and voluntary act of acquiescence as to bar the right of appeal. The motion to dismiss the appeal is therefore overruled.

2. The principal question presented is whether the elder Voss' acceptance of the devise in his favor precluded him from asserting curtesy in the Southgate street property, which was not disposed of by the will. It may be conceded that in the absence of a statute, election by the husband is governed by the same principles that apply to an election by the wife. Under the common-law rule prevailing prior to the enactment of section 1404, Kentucky Statutes, a devise by the husband to the wife was presumed to be in addition to dower and the wife could take both, unless a contrary intention appeared in the will or was necessarily inferable therefrom. Yancy v. Smith, 2 Metc. (59 Ky.) 408; 9 R.C.L. P. 602, § 43. Of course a contrary intention plainly appeared where the will provided that the devise was in lieu of dower, or where the husband, after making a devise to his wife, devised his remaining property to others. Under the foregoing rule, however, the wife was not required to elect between the devise in her favor and her dower in her husband's undevised estate, when it did not appear from the will that the devise was intended in lieu of dower. Davers v. Dewes, 3 P. Wms. 40, 24 Eng. Reprint, 961; Dicks v. Lambert, 4 Ves. Jr. 725, 31 Eng. Reprint, 375; Sheldon v. Rose, 41 Conn. 371; 40 Cyc. 1970; Sutton v. Read, 176 Ill. 69, 51 N.E. 801; Collins v. Collins, 126 Ind. 590, 25 N.E. 704, 28 N.E. 190; ...