Clay's Guardian v. Wallace

Opinion of ti-:e cotjkt by CHIEF JUSTICE BURNAM Reversing. The appellee, James A. Wallace, brought this suit against the appellant, J. H. Hardwick, as guardian of Floyd ,G. Clay, an infant, asking a sale of a house and lot in the town of Irvine, under section 490 of the Civil Code. He alleges in his petition that on the 2d day of May, 1901, he married the mother of the infant defendant, Floyd G. Clay; that a short time after their marriage the wife advanced $1,000 to be used in the erection of a dwelling house on a lot owned by him in Irvine, under an agreement that he should execute a deed to her for $1,000 worth thereof; that pursuant to this agreement, on the 19th of September, 1901, he executed a deed with covenant of general warranty for $1,000 of the value of the lot; that he and his wife and her infant son occupied the property as a home until her death on the Sth day of May, 1902; that F. G. Clay is under fourteen years of age, and then resided in Powell county, with his grandfather and statutory guardian; that, as the surviving husband, he was entitled to the use and occupation of that part of the property which belonged to his decease!! wife as a homestead; that it -was insusceptible of division without [602] materially impairing its value; and asked that it should be sold to the highest and best bidder, and the proceeds divided between himself and the infant defendant in accordance with their respective rights. The defendant Hardwick, as statutory guardian of the infant, filed an answer, in which he denied that plaintiff was entitled to a homestead in that part oí the house and lot which belonged, under his deed, to his deceased wife; and said that at the death of the wife plaintiff and her infant son were jointly entitled to the use and occupation of the property during the minority of the infant, and that when, it ceased to be so occupied the infant was entitled to $1,000 in the property, and asked that the interest of his infant ward be protected. Proof was taken showing that the property was insusceptible of division, and worth about $1,500. The chancellor adjudged that the property should be sold by the master commissioner upon a day fixed by himself, after advertisement thereof as similar property is required to be advertised when sold under execution, and should take bond for the purchase price, payable to himself as commissioner;; and that out of the proceeds of the sale the defendant Hardwick, as guardian of Floyd G. Clay, was entitled to $1,000, subject to a life estate therein of plaintiff; and that plaintiff could retain the $1,000 by executing in open court a covenant to the infant defendant with good security for the $1,000, without interest, payable at his death. The defendant excepted to so much of this judgment as authorized Wallace to retain the $1,000, and has brought the ease up for review. Section 1707 of the Kentucky Statutes provides: “The homestead shall be for the use of the widow so long as she occupies the same, and the unmarried infant children of the husbahd shall be entitled to a joint occupancy with her until the youngest unmarried1 child arrives at full age; but the [603] termination of the widow’s occupancy shall not affect the right of the children. But said land may he sold subject to the right of said widow and children if a sale is necessary to pay the debts of the husband.” Section 1708 of the Kentucky Statutes provides that: “The'homestead "of a woman shall in like manner be for the use of her surviving husband, and her children situated as above; and when his and their interest ceases it shall be disposed of in like manner, and the proceeds applied on the same terms to her debts; if none, divided .among her children.” Under section 1708, the plaintiff, Wallace, and the infant, Floyd G. Clay, were jointly entitled to the use and occupation of the homestead of the deceased wife until the infant was twenty-one years of age. After that time Wallace was entitled to its use and occupation during his life. But the statute did not vest in him an unconditional, vendible life estate in the homestead of his deceased wife. His homestead right therein depends upon its occupation by him. Whenever he permanently ceases to occupy the homestead of his deceased wife, his’ right thereto ceases, and the property reverts to the heirs at law of the wife. And an unconditional sale and conveyance of the property amounts to an abandonment. See Freeman, etc., v. Mills, 101 Ky. 142, 19 R., 316, 39 S. W., 826; Bryant v. Bennett, 22 R., 1086, 61 S. W., 1001; Kimberlin v. Manson, Isaacs, etc., 23 R., 42, 62 S. W., 494. But under section 2132 of the Kentucky Statutes he is entitled to have an estate for life in one-third of all the real estate to which his wife, or any one for her use, was seised of an estate in fee simple during coverture, unless such right shall have been barred, forfeited, or relinquished. The judgment is reversed, and cause remanded for proceedings consistent with this opinion.