Hessey v. Hessey , 94 Ky. 387 ( 1893 )

JUDGE LEWIS

DELIVERED THE OPINION OF THE COURT.

In 1848, Abraham Hessey died in Nelson connty, owner of seventy-eight acres of land on Cox’s creek, and an undivided third of a tract of one hundred, and seventy-one acres whereon he then resided. He had contracted for another third of that tract, which was, after his death, paid for with proceeds of his estate. His widow, Mary Hessey, owned, by inheritance, the remaining third of that tract, and was, after her husband’s death, allotted dower in the Cox’s creek land. Abraham Hessey left three children by Mary, all infants, viz. : William B., Elizabeth and Precions.

In 1874 Elizabeth married - McGree, and at the request of the mother, Mary, the other two- children, William B. and Precious, conveyed to Elizabeth McGree, or her vendee, the tract of seventy-eight-acres on Cox’s creek, in consideration of her conveyance to them of her undivided third interest in the home tract of one hundred and seventy-one acres. It is not disputed, but admitted by parties to this action, that William B. and Precious Hessey were induced to make the conveyance to the vendee of Elizabeth McG-ee, by the request and verbal agreement of their mother that. they were to have the whole of the home tract of one hundred and seventy-one acres; and they both have testified they would not have parted with their entire interest in the Cox’ s-creek land, worth about, or perhaps a little more than, one-third of the home tract, but for the agreement of their mother for them to jointly occnpy and use, and at her death to have, the whole of the home place, including her undivided third, which was necessary in order to make their respective shares equal to what Elizabeth McGree had gotten in the manner mentioned.

That the arrangement might be carried out, the mother, Mary, relinquished her dower interest in the Cox’s creek land, and thereafter she was supported and resided on the home place, which was jointly occupied, used and claimed by William B. and Precious without dispute or contention, until 1888, when Precious married Barton Snyder. During that period •William B. and Precious had, with money accumulated by their own efforts, purchased jointly two or three small tracts adjoining the home place; and he had built and occupied a dwelling-house on another part of the land, the mother and Precious continuing to reside at the old homestead. There was, in 1888, after Precious married, a division made by commissioners of the home tract and the three small tracts into two parts, one of which, including his dwelling-house, was allotteddo William, and the other, whereon was the homestead, was allotted to Precious. But although both Precious and her mother had agreed to make the division, and commissioners had been agreed upon for the puipose, who, as appears, made an apparently fair and just division, they, for some reason not satisfactorily explained, refused to abide by it, though the two lots were thereafter separately occupied and cultivated until this action was brought in 1891.

The purpose of the action instituted by Mary Hessey, , the mother, Precious Snyder and her husband, Barton Snyder, against William B. Hessey, is to have the home tract of one hundred and seventy-one acres divided into three parts — one to be set apart and conveyed absolutely to Mary Hessey, and the other two to William B. and Precious respectively. The lower court, however, refused prayer of the petition, and, instead, adjudged a division into two parts, one to be allotted to William B. and the other to Precious Snyder, but the former is required to pay annually for support of his mother a sum fixed by the commissioners, who attempted to make a division in 1888, which sum appears to be reasonable and sufficient, when added to what Precious Snyder should contribute, to comfortably support her.

It seems to us the judgment rendered is the only one a chancellor could, under the circumstances, render, that would be just and equitable under all the circumstances. For it is evident an allotment of one-third to the mother, who is too old to manage it successfully, would be of no benefit to her; and to allot one-third to her absolutely would be unjust to William B. For although the agreement of his mother upon faith of which he parted with his interest in the Cox’s creek land, in 1874, was verbal, we think it should be treated as an effectual estoppel as against his mother. Besides, she admits, in her testimony as a witness, the agreement was made, and makes it very clear she does not even now wish to violate it, or deprive William B. of ultimate acquisition of one entire half of the home place.

Judgment affirmed.