Wakefield v. Gilleland's Adm'r

• Decision Date: 03 March 1892
• Parties: Wakefield et al. v. Gilleland's Adm'r.
• Court: Kentucky Court of Appeals

18 S.W. 768

Wakefield et al. v. Gilleland's Adm'r.

Court of Appeals of Kentucky.

March 3, 1892

Appeal from Louisville law and equity court.

"Not to be officially reported."

Action by John Gilleland, administrator of John H. Gilleland deceased, against James A. Wakefield, and others, for the purpose of settling deceased's estate. Judgment for plaintiff. Defendants appeal. Reversed and remanded.

Pryor J.

The action below was instituted by the appellee, John Gilleland for the purpose of settling his father's estate, of which he was the personal representative. His father died in August, 1877, and his mother, the widow, died the following year. The personal assets of the estate, or nearly all of them, had been distributed by the appellee prior to the death of his mother, but when she died, by the consent of all parties in interest, her estate was taken possession of by the appellee, and distributed as if a part of the estate of his father. There was no administration on the mother's estate, but both estates were treated as one, and to be held and distributed by the appellee without fees or reward except such costs and fees as he was compelled by law to incur. Such was the agreement and understanding, as is expressly proven, with reference to the estate of the father and, under the circumstances of the case, it must be inferred embraces the estate of the mother also. The decedent left a large estate, consisting of lands and choses in action, to be distributed between the appellee, who was a son, and the appellants, Francis A. Beard and Mrs. Wakefield, who are the children of a deceased daughter. The appellee was therefore entitled in his own right to one-half the estate, and the children of the deceased daughter to one-half. The lands and personalty were divided, and as to this division no question is made in this case, except as to the liability of the appellee for one or more insolvent notes with which he was charged on the final judgment, and from which he prays a cross-appeal.

The principal question made in the case, and out of which this proceeding doubtless originated, is as to the advancements made by the father, during his life-time, to Mrs. Beard, the daughter, and to the appellee, his son. A mass of testimony is found in the record on the issue as to the advancements and those advancements are sought to be changed, by reason of the use of certain lands by each one of the heirs during the life of the decedent, and for the use of which it is claimed they should be charged rent, because it was a gift or donation of that much to the child by the father. The appellee and appellants admit the use and occupation of the land, but each insists that the rent was paid in the lasting improvements made; the appellants contending, however, that the rental value of the land occupied by the son greatly exceeded the value of the improvements made, and to that extent the appellee is chargeable. The appellee alleges that a contract was made between himself and his father that the rents should be paid in that way, and, if not, that, being a mere tenant at will or sufferance of the land, and liable at any time to be ousted by the father, its use should not be regarded as a gift, or as an advancement, but he should be treated as caring for the land at the mere will of the landlord, and for no other consideration. The appellants' ancestor and the appellee both claim, however, to have more than paid the rents by the improvements made. We think it well settled in this state in Shawhan v. Shawhan, reported in 10 Bush, 600, and in other cases, that the value of the use and occupation of land by one child under no contract of renting, although holders at the will and pleasure of the father, must be accounted for by the child as an advancement in the settlement and distribution of the father's estate, and also settled that, if there is a consideration to be paid for the use that is merely nominal and inadequate to such an extent as to show injustice and inequality in the distribution, the chancellor will disregard such a consideration, and require the child receiving the use of the property to account for its reasonable value. Gordon's Heirs v. Gordon, 1 Metc. (Ky.) 286; Ford v. Thompson, Id. 582. Neither the intention of the intestate nor his contract, if a mere avoidance of the statute producing that inequality attempted to be prevented by the statute, will be regarded by the chancellor when called on to determine advancements so as to produce equality in the division and distribution of the estate. The statute provides that "any real or personal property or money given or devised by a parent or grandparent to a descendant shall be charged to the descendant, or those claiming through him, in the division and distribution of the undevised estate of the parent or grandparent, and such party shall receive nothing more until the other descendants are made equal," etc. Gen. St. c. 31, § 15, p. 374. There may be such disproportion between the price given and the value of the thing delivered to the child as to show...