Guier v. Bridges

"Opinion of the court by JUDGE BURN AM, affirming on original AND REVERSING ON CROSS APPEAL. In 188,7 Luther L. Martin died in infancy, the owner of two tracts of land — one of 40 acres, in which be held title by deed from H. Hodges, and the other of 27 acres, by deed from W. H. Martin. Both his father, William Martin, and his mother, Nancy J. Martin, survived- him. The father, William Martin, died in 1900, leaving a will by which he devised to his wife, Nancy J. Martin, all of his real estate during her life or widowhood, and at her death to go to his three daughters, Susan Guier, L. S. Grissom and Eliza Thomas, children by a former wife. The wife, Nancy J. Martin, died about six months after her husband, leaving a will by which she devised all of her property, real and personal, to tbe appellee, Jane K. Bridges, who instituted this suit, claiming that Nancy J. Martin owned by inheritance from her deceased son, Luther L. Martin, the fee to one-half of the two tracts of land owned by him at his death, and asked for a sale and division of the proceeds thereof. Appellants, in their answer, admitted that Luther L. Martin died in infancy, holding Uitle to the two [151] tracts of land, but allege that these tracts o|f land were paid for by William Martin, the father of L. L. Martin, who had the title taken to his son, and that, under section 1401 of the Kentucky Statutes, the title descended to the father, to the exclusion of the mother, and passed under his will to his three daughters. The appellee, in her reply, denied that William Martin furnished: the money to pay for the lands owned by his son L. L. Martin at his death, and claimed that they were jmrchased with his own means. The first section of the statute upon descent and distribution, which is section 1393 of the Kentucky Statutes, provides: “When a person having right or title to any real estate shall die intestate as to such estate without leaving children or their descendants, it shall go to his father and mother, one moiety each.” Section 1401 provides: “If an infant dies without issue having the title to real estate derived by gift, devise or descent from one of his parents, the whole shall descend to that parent aind his or her kindred as hereinbefore directed, if there is any, and if none, then in like manner, to the other parent and his or her kindred. But the kindred of one shall not be so excluded by the kindred of the other parent, if the latter is more remote than a grandfather, grandmother, uncles and aunts of the intestate and their descendants.” In speaking of this statute, Prof. Minor, in his Institutes, says: “This provision mars the symmetry of the original lav/ of descents, and comes not out of Mr. Jefferson’s ‘quiver of choice arrows.’ It arose out of a solicitude to prevent estates going out of the families where they originally belonged, and it is the only instance where any respect is paid by the statute to the blood of the first purchaser.” It was enacted substantially in 1790 by the Virginia. Legislature, and was adopted as a part of our laws [152] in 179C. Rut it has always been most strictly construed, and the statute has been held to apply only to those cases where the title to the real estate owned by* the infant came to him by gift, devise, or descent from one of her parents. See Duncan v. Lafferty’s Adm’r 29 Ky., 47; Smith’s Ex’r v. Smith, 65 Ky., 522; Walden v. Phillips, 86 Ky., 302 (9 R., 569) 5 S. W., 757. The statute does not apply to gifts of money or other personal property, and it is therefore immaterial whether the land owned by the infant was paid for by him or his father. The word “title,” when used in connection with real estate, is generally defined to be the evidence of right by which a person has possession of property. And in 2 Bl. Comm., 195, it is defined as the means whereby the owner of land has just possession of the property. .The infant’s title, to the real estate in controversy did not come from his father, but from his vendors. We are therefore of the opinion that when he died in infancy, without leaving issue, the title to the real estate held by him passed, under section 1393 of the statute, to his father and mother in equal moieties; and the moiety with the mother inherited passed under her will to the appellee, J. K. Bridges. For the reasons indicated, the judgment is affirmed on the original and reversed on the cross appeal, and remanded for proceedings consistent herewith.