Wheeler v. James & James

• Decision Date: 18 June 1909
• Citation: 120 S.W. 350
• Parties: WHEELER et al. v. JAMES & JAMES et al.
• Court: Kentucky Court of Appeals

120 S.W. 350

WHEELER et al. v. JAMES & JAMES et al.

Court of Appeals of Kentucky.

June 18, 1909

Appeal from Circuit Court, Crittenden County.

"Not to be officially reported."

Action by James & James and another against Ula Wheeler, guardian and others. Judgment for plaintiffs for less than the amount claimed, and defendants appeal, and plaintiffs prosecute a cross-appeal. Affirmed on the appeal and on the cross-appeal.

Blue &amp Nunn and J. A. & Jno. A. Moore, for appellants.

James &amp James and A. C. Moore, for appellees.

HOBSON J.

Mrs. E G. Wheeler died testate in July, 1907, leaving surviving her her husband, I. F. Wheeler, and three infant grandchildren the children of her son who had died a few years before. Her will was duly admitted to probate after her death. By her will she devised her entire estate to her husband for life, with remainder at his death to her three grandchildren. She appointed her husband as sole executor of the will, and directed that he be permitted to qualify without bond. She authorized him at his option to sell and convey as executor two lots that she owned and provided that he was not to sell any of the rest of her real estate. After the will had been admitted to probate, the mother of the three grandchildren qualified as their guardian, and employed James & James and A. C. Moore to appeal from the order probating the will, executing to them a contract as guardian by which she agreed to pay them as a fee a sum equal to one-half of the sum recovered by suit, compromise or otherwise, by reason of the setting aside or revocation of the will. As soon as I. F. Wheeler learned that there was to be a contest over the will, he informed the parties that he would renounce the will and let the estate go as though his wife had died intestate; he taking the interest in her estate that the law would then give him. This was done. The mother of the children was removed as guardian for failing to execute a bond with sufficient surety, and H. A. Haines was appointed their guardian. The personal estate of Mrs. Wheeler amounted to about $12,000. The real estate was of value as much as the personal estate or a little more. The executor paid over to the guardian one-half of the personal property, and he took charge of the real estate under an arrangement with the grandfather by which he was to have two-thirds of the rent and the grandfather one-third. The attorneys then presented to ...