Wednesday, November 29, 2017

James Alpheus Kirk

        This appeal concerns the Estate of James Alpheus Kirk, who died in Ohio County in 1939. He was survived by his wife, Bessie Himes Kirk, one son by her, Arthur Gayle Kirk, and seven children by his former wife.  Mr. Kirk had a rather large estate, including 14 oil wells.  The purpose of the lawsuit, and the appeal, was to get the court’s advice and instructions as how to construe Mr. Kirk’s Will.  The ruling by the trial court and the appellate court is rather technical, but shows how important it is for the language in a Will to be unambiguous. 

290 Ky. 760
Kirk's Adm'rs v. Massie et al.
Court of Appeals of Kentucky.
May 26, 1942.
 Appeal from Ohio Circuit Court.

        Robert Todd Sweeney for appellants.

        Otto Martin for appellees.

        Before B.N. Gordon, Special Judge.


        This suit was brought by the administrators with the will annexed of James Alpheus Kirk, deceased, to obtain the construction of his will and advice and directions as to their duties with respect to the matter of paying out and distributing the funds in their hands. J.B. Kirk, a son of the testator, and A.D. Kirk, a collateral relative, were appointed administrators with the will annexed after the resignation of the executor named in the will.

        James Alpheus Kirk died in July, 1939, a resident of Ohio county, leaving surviving him his widow, the appellee Bessie Himes Kirk, one son by her, Arthur Gayle Kirk, and seven children by a former marriage. All of the children are more than 21 years of age, and they and their spouses were made parties to the suit. The testator left $21,716.99 in cash, several thousand dollars in notes, stocks, and bonds, a farm of 141 acres in Ohio county, a one-half interest in another farm of 126 acres, and a house and lot in the city of Hartford. The 141-acre farm has little value for agricultural purposes, but on it are 14 producing oil wells. The first well was drilled in 1928, and at the time of the testator's death, and for several years prior thereto, his royalties from the wells had averaged more than $200 monthly. The pertinent portions of the will read:

        "Fourth: I will and desire that the oils, gas and other minerals underlying my farm near Clear Run Church in Ohio County, Kentucky, containing about one hundred forty one (141) acres be held intact or undivided by executor so long as my wife, Bessie May Kirk, may survive or so long as oil and gas is produced in paying quantities and all royalties, rents and other sums that might accrue be collected by my executor and paid to my heirs as hereinafter directed. * * *

        "Sixth: I will and bequeath to my wife, Bessie May Kirk, all my household and kitchen furniture, and all poultry on hands, one cow and one automobile for her own to sell or dispose of in any manner she may desire and in addition thereto I will to her the sum of $1,200.00 in cash per year, to be paid to her monthly by my executor in the sum of $100.00 per month, from any income that might be derived from my estate, * * *

        "Eighth: I will and direct that all sums accruing from royalties and rentals from oil and gas wells on my land shall be collected by my executor and that he pay from such sums to my wife, Bessie May Kirk, the sum of $100.00 per month as above mentioned, so long as she may live and the remainder, if any, be equally divided among all my children or their heirs and the said $100.00 per month to be paid from any funds derived from my estate provided the said royalties or rentals are not sufficient to make the said payment of $100.00 per month.

        "Ninth: All notes, bonds and stocks that I might own at my death I direct my executor to convert into cash within two years after my death and to distribute the same equally among all of my children or their legal heirs. * * *

        "Thirteenth: I will and direct that after the payment of my debts, burial expenses and erecting the monument herein named that the balance of the cash that I may have on hands or on deposit be distributed equally among all my children herein named. * * *

        "Fifteenth: In the event my wife, Bessie May Kirk, does not elect to take my house and lot in Hartford, Kentucky, I direct my executor to sell within a period of two years after my death the same at the Court House door in Hartford, Kentucky, to highest and best bidder and this my will empowers him to make and deliver a General Warranty deed to the same and to divide the proceeds of the same equally among all my children named herein or their heirs."

        Because he deemed the language used by the testator to be ambiguous, the chancellor heard oral testimony concerning the conditions and circumstances surrounding the testator at the time the will was executed.

        Soon after the testator's death his widow, Bessie Himes Kirk, authorized the personal representatives in writing to distribute to the children the cash on hand, and they distributed to the children the sum of $19,543.05. It may be stated in passing that the record discloses a wholesome and pleasant family relationship, and a laudable attitude on the part of all parties to the litigation. The widow, her son, and her seven stepchildren are in complete harmony and accord, and desire to carry out the intentions of the testator whatever they may have been. The principal confusion is caused by clauses 6 and 8 of the will. Clause 6, standing alone would indicate it was the testator's intention that his entire estate should be kept intact during the widow's life to secure the payment to her out of the income the sum of $100 per month. Clause 8 provides that the bequest to the widow shall be paid out of royalties and rentals from oil and gas wells on the 141-acre farm, and in the event the royalties and rentals are not sufficient for that purpose the bequest shall "be paid from any funds derived from" the estate. It is appellants' contention that under this clause the bequest to appellee Bessie Himes Kirk is payable out of any funds belonging to the estate of the decedent, either income or corpus, and that the entire estate must be held intact by them until her death in order to secure its payment. The circuit court adjudged that the widow, Bessie Himes Kirk, was devised the sum of $1,200 per year during her lifetime, payable in monthly installments of $100 each, out of the oil royalties accruing from the 141-acre farm, and to secure the payment of this bequest the dividends or interest from stocks and notes belonging to the testator at the time of his death, the farm rentals, and the oil royalties collected in excess of the amount necessary to pay to the widow the sum of $1,200 per year should be accumulated and held in trust by the administrators with the will annexed. It was further adjudged that the bequest to the widow was not to be paid out of funds derived from the corpus of the estate, but the corpus of the estate was devised to the testator's children, share and share alike. The administrators with the will annexed were directed to pay to the children all funds derived from the collection of notes and the sale of stocks and bonds or any other item constituting the corpus of the estate as such funds might arise. At the time the judgment was rendered the administrators with the will annexed had on hand the sum of $8,010.03. Of this sum $4,381.49 represented the proceeds of the sale of stocks and bonds and the collection of the principal of notes, and $3,628.54 represented income which had been collected by the administrators with the will annexed. This income consisted of rents, interest, dividends, and surplus of royalty. The court directed the personal representatives to distribute the $4,381.49 to the children and to hold in trust $3,628.54 as an assurance of the payment to the widow of $1,200 per year for her lifetime.

        In construing a will the intention of the testator must be ascertained from the will as a whole, and, if possible, all parts of it must be given effect. In the will before us the testator clearly intended that all personal property not given to his wife should be distributed to his children. By clause 9 he specifically provided that all notes, bonds, and stocks owned by him at his death should be converted into cash within two years after his death and distributed among his children. In clause 13 he directed that the balance of cash on hand or on deposit after the payment of his debts and funeral expenses be distributed equally among his children. In clause 15 he directed that his house and lot in Hartford be sold within a period of two years after his death and the proceeds divided equally among his children in the event his wife did not elect to take it for and during her lifetime, an option she was given in clause 5 of the will. The only property excluded from sale and distribution was his farm lands. Undoubtedly he believed that the oil royalties and farm rentals plus any income received from the corpus of his estate before its sale and distribution would be sufficient to pay the bequest made to his widow in clause 6 of the will. The testator's direction in clause 8, that the $100 monthly installment should be paid from any funds derived from his estate provided the royalties or rentals are not sufficient to make the payment, obviously refers to the income and not the corpus of his estate. Such a construction harmonizes the apparent inconsistencies of the instrument and gives effect to each and every provision of it. Where there is an irreconcilable conflict between two clauses of a will, the last clause will be given effect, Muir's Ex'r v. Howard, 178 Ky. 51, 198 S.W. 551, but as said in Thomas Ex'r v. Marksbury, 249 Ky. 629, 61 S.W. (2d) 282, 283:

        "Courts will always construe a will so as to harmonize its different provisions and give effect to each, if possible. To this end they will not disturb the first provision further than is absolutely necessary to give effect to the second. It is only where the provisions are irreconcilable that the latter will be preferred and prevail over the former."

        The chancellor's construction of James Alpheus Kirk's will conforms to this rule, and when the language of the will is considered in the light of the circumstances surrounding the testator at the time of its execution, there can be no doubt that the construction adopted by the chancellor carries out the testator's intention.

        Judgment affirmed.

Saturday, November 25, 2017


JOSEPH T. MILLER was born in this county October 14, 1840. His father, David A. Miller, was born in this county, but his ancestors were from Maryland, and came to Kentucky about 1795. David A. Miller has given special attention to farming, in which he has been successful, having acquired 2,000 acres of land, which he has divided principally among his children; he is still living in the enjoyment of perfect health at the advanced age of eighty- four years. His wife, Maria (Williams) Miller, died in January, 1881. They were long members of the Methodist Church, and were parents of ten children, all of whom lived to be grown. Joseph T., next to the youngest child of the family, received his early training at district schools, and finished his education at the Hartford Seminary. He was student of medicine under Dr. John E. Pendleton, of Hartford, and after three years attendance at the Jefferson Medical College, at Philadelphia, graduated therefrom in 1870, when he returned to Hartford, where he has since practiced. He is a member of the McDowell Medical Society, and has a large practice. He is a member of the Masonic fraternity and in politics a Democrat. May 6, 1880, he married Miss Jennie Short, of Rumsey, McLean Co., Ky., daughter of Col. William and Elizabeth (Green) Short. Mr. and Mrs. Miller are members of the Methodist Church. They have three children: Lizzie S., David G., and Joseph T.

Source: J. H. BATTLE, W H. PERRIN, & G. C. KNIFFIN 1895

Note:  Dr. Joseph Thomas Miller died 11 March 1911 in Hartford in Oakwood Cemetery, Hartford.

Wednesday, November 22, 2017

Hattie B. Kissinger

This case is about an automobile accident that occurred in 1936 where a lady, Hattie B. Kissinger, a resident of Fordsville, was killed near a bridge crossing the Green River, near the community of Spottsville, Henderson County (the opinion incorrectly says “Pottsville”). We can assume the trip went from Fordsville to Owensboro, and then on to a point near Spottsville, while en route to Paducah on Highway 60.  The jury awarded the estate $8,900 and the defendant appealed on the grounds that the trial judge gave the jury faulty instructions.  Keep in mind that in 1937 automobiles and trucks had not been operating on Kentucky roads for very many years (sales to the non-wealthy started about 1916), and note that the automobile in this lawsuit had “an electrical appliance” that used red lights to alert other drivers that the auto was stopping; stop-lights must have been a novelty in 1936.

274 Ky. 606
Vinson v. Kissinger's Adm'r.
Court of Appeals of Kentucky.
Decided May 10, 1938.

        Appeal from Henderson Circuit Court.

        ROBERT B. REED and ADRIAN H. TERRELL for appellant
        PENTECOST & DORSEY and OTTO C. MARTIN for appellee.


        On the 7th day of May, 1937, C.P. Kissinger, administrator of the estate of Hattie B. Kissinger, deceased, was awarded a judgment against W.A. Vinson in the sum of $8,900, growing out of a collision of a car in which Hattie B. Kissinger was riding with one that W.A. Vinson was operating. From that judgment Vinson appeals.

        Counsel for appellant contend: (1) That the instructions given to the jury by the court over their objection were erroneous and prejudicial to the rights of appellant; (2) that the verdict was excessive when based upon the facts heard upon the trial. Since the court has reached the conclusion that the instructions in part were erroneous and prejudicial to the rights of appellant, it will be unnecessary to consider the alleged error of the excessiveness of the verdict. That question is not considered, but especially reserved. There are other errors complained of, one of which is that the verdict seemed to be the result of passion and prejudice of the jury brought about in part by improper argument of counsel for appellee. Such alleged error may not occur again on another trial. Therefore, we will pass it up.

        In order that we may clearly and properly consider the particular erroneous instruction, it is necessary to state the salient facts on which the cause of action was based. On the 20th day of May, 1936, the deceased, Hattie B. Kissinger, was riding in a car operated by her son-in-law, H.L. Morton. In the same car were her daughters, Mrs. H.L. Morton and Miss Pauline Kissinger. They were riding on the front seat with H.L. Morton, the operator of the car, Hattie B. Kissinger on a feather bed in the rear seat. She had been sick for some months; was afflicted with a number of ailments, such as neuritis, a "nerve trouble," gastritis, a stomach trouble, colitis, and possibly some trouble with her bladder. It is not clear from the evidence whether she was sitting or lying upon the feather bed. In any event, she was using it for her comfort. Her son-in-law came to her home in his car, in part for the purpose of conveying her from Fordsville, Ohio county, her home, to the city of Paducah, where Mr. and Mrs. Morton resided. They were traveling upon what is known as public highway No. 60. They were nearing a bridge that crosses Green river, near the village of Pottsville (sic), where the alleged injury was charged to have been inflicted. Following or trailing this car was appellant, Vinson, who was operating a 1/2-ton truck, the property of the mining department of Kentucky. The truck had been following the car for a half mile or more along a straight concrete highway. It was about 3 o'clock in the afternoon, the sun was shining brightly. The car and the truck were running at the rate of about 35 miles per hour. Just before reaching the bridge, H.L. Morton suddenly slowed down his car apparently for the purpose of stopping it. In doing so, he gave no warning of his intention with his arm and hand, as required by the statute and rules of the highway. The truck was within about 20 to 30 feet in the rear of the car, when Morton began to slow up his car for the purpose of stopping. Morton stated that he slowed down because just in front of him the road was "bumpy" on account of some repairs that had been made in the highway. However, Morton did not state, nor did any witness for appellee state, that any notice or warning was given the approaching truck, of his intention to slow down or stop his car. He does state, however, that in the rear part of his car, on the end of each fender, was an electric appliance, and, when he threw on his brakes, there were red lights on which the word "stop" would show. On the other hand, Vinson, the operator of the truck, stated that the road was straight and they had been riding along about that distance for a half mile or more; that he had his truck all the time under full control; that both vehicles were moving at about 35 miles per hour — the same rate of speed — that without warning of any kind Morton suddenly and abruptly slowed down and stopped his car practically just in front of him; that he threw on his brakes and made every effort he could to prevent striking it, but the stopping was so sudden that he was unable to pass the car of Morton without striking it slightly on the rear bumper, doing some small damage; that no one to his knowledge was injured by the impact. However, Morton stated that his car was struck with such force in the back part that an impression was made as if a baseball had struck it. It is in proof by one of the daughters that Hattie B. Kissinger, soon after the car was struck, appeared in distress and soon thereafter began to complain of her back being injured; that she had never complained of that before; that she had practically recovered from the other ailments. Several doctors who had been treating her stated that the injury of the back was not made manifest until after the impact of the truck with Morton's car. In any event, in a short while, she died.

        It is insisted by counsel for appellant that the evidence was not sufficient to show that her death was caused from the truck colliding with the car. That question is reserved and not passed upon. The pivotal point is, did the court err in the instructions? The instruction complained of by counsel for appellant is a certain part of instruction No. 1. That we may consider that part that is contended to be erroneous, we deem it necessary to embody the entire instruction:

        "It was the duty of the defendant, W.A. Vinson, at the time and place mentioned in the evidence, to drive his truck in a careful and prudent manner, with due regard for the safety and convenience of other traffic and persons on the highway at such time and place, to exercise ordinary care to avoid striking other cars or persons thereon and, in following the car in which the plaintiff's decedent was riding, to have his car under such reasonable control as to enable him, by the exercise of ordinary care, to avoid coming into collision with same in case it should unexpectedly slow down.

        "And if you shall believe from the evidence that the defendant failed to observe the said duties, or any of them, and that, as a direct and proximate result of such failure, if any, the defendant's truck was caused to and did collide with the car in which plaintiff's decedent was riding, thereby injuring her physically and from which physical injuries she subsequently died as a direct and proximate result thereof, you should find your verdict for the plaintiff and award to him damages as hereinafter set out."

        Counsel make no complaint of that part of the instruction wherein the jury was told that it was the duty of the defendant to drive his truck in a careful and prudent manner with due regard for the safety and convenience of the traffic and persons on the highway at such time and place and to exercise ordinary care to avoid striking other cars and persons thereon; but, on the other hand, practically admit that so far the instruction correctly presented the duties on the part of the defendant, Vinson. However, counsel with much emphasis object to that part of the instruction that told the jury that it was the duty of the defendant to anticipate that the car driving ahead of him might unexpectedly slow down at any time. That part of the instruction counsel insist, being the use of the phrase to avoid coming into collision with same in case unexpectedly it should be slowed down, was equivalent to making the defendant an insurer against any injury that the occupants in the car might receive, and was calculated to and did convey the idea to the jury that there was no duty imposed upon Morton, the operator of the car in which his mother-in-law was riding, to give any signal whatever of his intention of slowing down or stopping his car at the time, and, therefore, he had the right to slow down at any time without giving any warning of his intention to do so; that, regardless of Morton's negligence, the defendant, himself, should anticipate such an unexpected emergency whether warned of the intention of Morton or not. We think there is merit in that contention. The operator of the car in which Hattie B. Kissinger was riding had certain duties to perform under the law in traveling upon the highway. The same duties devolved upon him to give the statutory warning of his intention to slow down or stop his car, as that of Vinson who was following him upon the same highway, to use ordinary care to avoid striking his car.

        The law of the highway imposes a duty upon the operator of a motor car to give notice as provided by section 2739g-50, Kentucky Statutes. There is no evidence that the warning prescribed by the statute was given by the operator of the Morton car. This warning should always be given that the purpose of the operator of the car may be known when there is an intention to abruptly and suddenly check his car or stop it. This warning must be given by the use of the operator's arm and hand or by an electrical or mechanical device approved by the commission. There is no proof that there was upon this car a mechanical device. The fact that the car had lights in the rear that were being operated by Morton is not a mechanical device as contemplated by the statute, any more than the electrical horn that is on every car.

        In the case of Marsee et al. v. Bates, 235 Ky. 60, 29 S.W. (2d) 632, we said (page 634):

        "Under the statute the signal may be given either by the hand and arm or by the electrical or mechanical device. Both are not required by the statute. The electrical or mechanical device is a mechanical substitute for the hand, many of which are in common use on cars. It has no reference to the blowing of the horn."

        Subsection 2 of the above section of the statute, supra, provides:

        "Intention to stop a vehicle or to abruptly or suddenly check its speed shall be indicated by extending the hand and arm out from and beyond either side of the vehicle in a downward direction at an angle of forty-five degrees or greater from the horizontal."

        There is no proof that the warning provided by that subsection was given. However, it is in proof that on each rear fender of the Morton car was an electrical appliance that when the operator of the car pressed the brake, a red light at once showed. Close to the red light was written the word "stop." The proof shows that these lights were in working order.

        Appellant in his evidence stated that he did not see the red light if it were put in operation; that the rear part of the Morton car was covered in mud. This fact was denied by Morton. In any event, if such red lights were on the rear of the car, and the word "stop" also was thereon, this did not authorize the operator of the Morton car to fail to do his duty in giving the statutory warning denoting his purpose to slow down or stop his car. The proof shows there was no other vehicle in front of the Morton car or any reason given for his slowing up, except that he saw a bump in the highway. It is not shown how much of the highway the bump covered. At that place the highway was straight and had been straight for a half a mile or more. The two vehicles had been running the same speed of about 35 miles per hour. They were meeting no vehicles; there were no side roads from which travelers might be expected to enter the highway on which Morton and Vinson were traveling. There was nothing before them that would give notice to Vinson that there was any reason for Morton to stop his car. The way was clear. There is no complaint of the rate of speed of either vehicle. There was nothing to induce Vinson, the operator of the trailing truck, to reach a conclusion that the Morton car would suddenly or abruptly slow down. He had the right to rely upon Morton giving the statutory warning if for any cause he wished to slow down his car. From the rate they were traveling, it was reasonable for Vinson to believe that, before doing so, Morton would give the customary and statutory warning of his intention. We think it was error for the court to instruct the jury as set out in instruction No. 1. That was in effect telling the jury that, although both vehicles were running on the highway at the same rate of speed, one behind the other from 20 to 30 feet apart, still, regardless of the negligence of the operator of the car in front, of his failure and utter disregard of his duty in complying with the statute, it was still the duty of Vinson to contemplate as well as anticipate an unexpected slow-down on the part of the operator of the Morton car. That part of the instruction was bound to be error and prejudicial. This instruction necessarily made instruction No. 2 prejudicial, which is as follows:

        "If you shall believe from the evidence that the defendant was observing the duties imposed upon him by the first instruction, and shall further believe from the evidence that the car in which plaintiff's decedent was riding suddenly and unexpectedly slowed down or stopped on the highway without warning that it was about to do so, and that the defendant could not, by the exercise of ordinary care, avoid coming into collision with same, and that the sudden slowing down or stopping of said car was the sole cause of the said decedent's injuries, if she received any injuries, then the law is for the defendant and you should so find."

        The effect of the two instructions when read together, brings the jury to the narrow point as suggested in brief of counsel for appellant:

        "* * * if the jury found that the sudden and unexpected slowing down of the car in which the decedent was riding, without warning to the defendant that it was about to do so was the sole cause of the decedent's injuries, then the law was for the defendant."

        Counsel for appellee in their excellent briefs insist that the complained of instructions present fairly the law based upon the facts of this case. Among the cases cited by counsel is Wright v. Clausen, 253 Ky. 498, 69 S.W. (2d) 1062, 104 A.L.R. 480, a part of which reads as follows (page 1064):

        "When, by section 2739g-50, Kentucky Statutes, there was imposed upon the operator of a motor vehicle certain duties relative to turning, stopping, or changing the course of such vehicle, and giving signals therefore, then there fell upon the operators of trailing and on-coming vehicles the duty to watch for and observe signals of intention to turn, stop, or change of course, * * * and the operators of trailing or on-coming vehicles must observe and give regard to signals, so given, and must use ordinary care to keep their trailing or on-coming vehicles under such control as to avoid coming into collision with the vehicle from which the signals were given."

        We still adhere to that construction of section 2739g-50. The error in instruction No. 1 in our opinion, is mainly because the duty imposed upon the operator of the Morton car relative to stopping, slowing down, and giving warnings was overlooked. Counsel for appellee especially relies upon the case of Owen Motor Freight Lines et al. v. Russell's Adm'r, Owen v. Sawyers' Adm'r, 260 Ky. 795, 86 S.W. (2d) 708, and as a foundation for their argument they quote from that opinion the following (page 711):

        "Where one vehicle is trailing another, the trailing motorist must govern his speed to keep back a reasonably safe distance so as to provide for the contingency of the front vehicle suddenly stopping or decreasing his speed, so he can stop or decrease his speed to avoid a collision, or can turn out safely to pass the vehicle in front."

        The above quotation is taken entirely and was based upon the facts in the case of Rankin v. Nash-Texas Company, Tex. Civ. App., 73 S.W. (2d) 680. The facts on which that quotation was founded are not similar in any respect to the facts here.

        In the instant case the question of speed is not an issue. There is no issue that Vinson failed to keep a proper lookout. The distance of the Vinson truck from the Morton car is not in question. Had Morton complied with the statutory warning by placing his arm and hand at right angles, as the law directs, it being during the day when the sun was shining and everything could be plainly seen, when each party was running on the right side of the highway, there being no obstruction to either vehicle in front of their movement, both running at the same speed, then it would be reasonable that the trailing truck on observing the warning of the leading car, should it have been given at the proper time and for a reasonable distance before reaching the impediment in the road, then each vehicle running at the same rate, would and could have slowed up in the same proportion and the collision, no doubt, could have been avoided. The rule in the Owen Motor Freight Lines Case, supra, does not and should not apply to the facts in the instant case.

        Having reached the conclusion that the part of instruction No. 1 complained of by counsel for appellant was error and prejudicial to the rights of appellant, the judgment is reversed with further proceedings consistent herewith.

Saturday, November 18, 2017


ELIJAH MILLER was born January 9, 1834, in Ohio County, Ky. His father, David A. Miller, was born August 19, 1801, in the same county, and is a son of David, Sr., and Dorcas (Holiday) Miller. David, Sr., was a native of Calvert County, Md., and came to Kentucky in 1798; his father, Joseph Miller, was a native of Ireland. Elijah Miller began farming for himself at the age of twenty-one at which he has always been successful, now owning 456 acres of highly improved land, a large part under cultivation. September 28, 1856, he married Elvira Barrett, of Ohio County, daughter of Ignatius Barrett. They have seven children living: Lois B., William B., Louella, Richard P., David L., Marvin I., and Carrie — all at home. With his wife and three children, Mr. Miller is a member in good standing of the Methodist Church. In politics he is a Democrat and a supporter of the temperance movement, having at one time been a member of the S. T. and S. of T.

Source: J. H. BATTLE, W H. PERRIN, & G. C. KNIFFIN 1895

Note:  Elijah Miller died 8 Apr 1898 in Ohio County and is buried in the Miller Cemetery at Beaver Dam.

Wednesday, November 15, 2017

William H. Cundiff

William H. Cundiff applied for a pension based on his service with the Confederate Army. In the 1920 census he lived in Bartlett, Ohio County. Mr. William Henry Cundiff died 4 Sep 1929 in Oldham County, KY and is buried in Pewee Valley Cemetery, Oldham County.

Saturday, November 11, 2017

Debt collection lawsuit - N. D. Foreman

     This is another appellate opinion from an Ohio County lawsuit. This took place during the Great depression (the 1930's) when everyone was broke, banks were closing, and there was very little money in circulation. In this lawsuit a retail grocery store (Cook) had obtained two judgments against Mr. Foreman for about $100.00 and Cook was trying to collect on the judgments by attempting to get the sheriff to "levy" against Mr. Foreman's farm and household goods (furniture, etc.).  

     All states have a law that allows debtors to claim exemption of certain property when a debt is being collected - in other words, a creditor cannot take every single thing a debtor owns. These laws allow the debtor to keep a few things in order to subsist. These laws are different in every state. In Kentucky, in the 1930's, this law was called the "Homestead exemption."  Also, Mr. & Mrs. Foreman were divorced and moved around a bit.

    Thus, in this case, Cook was trying to collect a $100.00 debt from Mr. Foreman and Mr. Foreman claimed exemption of certain property under the Homestead law; Cook claimed that Mr. Foreman had abandoned the property and the exemption was no longer available to him (a technical excuse that claimed that the exemption law no longer applied).  So, read it below to see who won.


277 Ky. 812
Foreman v. Cook et al.
Court of Appeals of Kentucky.
April 21, 1939.

        Appeal from Ohio Circuit Court.

        E.S. HOWARD for appellant.

        M.L. HEAVRIN and O.C. MARTIN for appellees.

        Before George S. Wilson, Judge.


         At the time the appellant and plaintiff below, N.D. Foreman, gave his deposition in this case, as if on cross-examination  (which was on March 24, 1937), he was 48 years of age. About 13 years prior thereto, and after he had married and was the father of three children, he became indebted to appellees and defendants below in the amount of two grocery accounts aggregating about $100. Shortly thereafter his father died the owner of about 160 acres of land of little value, located in Ohio County, Kentucky, and appellant with his family thereafter moved into the residence owned by his father before the latter's death. Later the land of the father was divided by a court proceeding and plaintiff was allotted 22 acres as his share, and which included his father's residence where he (appellant) was living at the time. The 22 acres contained only 5 or 6 acres of any value for cultivation, the remaining portion being worn hill land, worth but little for any purpose, and of comparatively no productive value. In the meantime plaintiff's health failed and he and his wife concluded that they could make life easier by moving to Owensboro, Kentucky, where she could get work to do and appellant would be more accessible to physicians for treatment of his ailment and thereby be better prepared for the restoration of his health. They rented premises in Owensboro and made the move, carrying with them, of course, their then three infant children, consisting of one girl and two boys. They resided there and the wife got work, but the record does not disclose what the husband did, if anything, during their Owensboro residence.

        Sometime prior to July 24, 1933 (the date not being shown in the record), differences grew up between appellant and his wife and they separated, but it is not shown in the record the nature of the disturbance of their domestic tranquility, nor is there any intimation as to who was to blame therefor, except that in a following suit for a divorce by the wife against her husband (appellant) she was successful and obtained a judgment on the date indicated setting aside the bonds of matrimony. At that time the daughter was more than 21 years of age and had married. A son next in age to her was close to 21 years of age and shortly thereafter he married — leaving only one infant child, the youngest boy, who was afflicted with epilepsy. The judgment of divorce said: "And she (the wife) is hereby awarded the care, custody and control of Hollis Foreman, the infant child of the above named parties, and the defendant is to have the privilege of visiting the said child and having said child with him at reasonable times and should either thereof, the above named parties, marry, then they may make a new agreement regarding the care, custody and control of this infant, until further orders of this court." No alimony allowance was ordered in the judgment and presumptively none was asked. No other pleading or order or any part of the divorce action appears in this record.

        When the parties separated (which was, of course, prior to the filing of the divorce action brought in the Daviess circuit court), the husband immediately moved back to his small Ohio county farm inherited from his father, which in the meantime became occupied by the daughter and her husband to which they removed immediately after their marriage. Appellant carried with him his infant son, who was then some 12 or 13 years of age, and the four lived together upon the inherited Ohio county farm for some two years when the daughter and her husband moved back to Owensboro, and the infant son went with them, and we gather from the record (although there is no specific evidence on the question) that he thereafter resided with his mother, who in the meantime had married the second time. Being left alone the appellant resided on his inherited farm for perhaps a year or more, but he had difficulty in making ends meet owing to the fact of the small amount of cultivatable land on his farm. He had an opportunity of renting it for an annual rental of about $50, which he consented to and did do, but not until he had rented for himself another place about a mile away from a neighbor, upon which there was a small abandoned shack and which contained more land suitable for cultivation. His wife's uncle, who was quite old and more or less feeble, had previously taken up his abode with appellant and the two moved into the rented farm located about a mile away from appellant's tract. At an earlier date appellees procured two judgments against appellant on their merchandise accounts, in the quarterly court of Ohio county.

        In 1936 they procured copies of those judgments and filed them in the Ohio circuit court. They then obtained executions thereon and the sheriff levied them on appellant's inherited farm while he was living on the nearby rented place referred to. However, at all of the rentings of his inherited farm he had reserved space for the storage of some of his household goods and which was so utilized by him. After the sheriff levied the executions, as stated, appellant filed this action in the Ohio circuit court against his creditors in the executions against him, and the sheriff to enjoin the enforcement of the levy, on the ground that the property levied on was exempt to him as a homestead. The answer of defendants denied the averments of the petition and affirmatively pleaded that defendant had abandoned his homestead because of the facts hereinbefore recited. That pleading was denied and appellees then took the deposition of appellant, as if upon cross-examination, and they also took the deposition of one Patton from whom the nearby farm occupied by appellant was rented, and upon which he resided at the time of the levy.

        The case was then submitted and the court dismissed appellant's petition upon the ground that plaintiff "abandoned his homestead in and to the 22 acres of land mentioned and described in his petition," and for which reason he was not entitled to the exemption contended for. It will thus be seen that the judgment was bottomed exclusively on the ground of abandonment of the homestead, and not upon any other ground, such as that appellant was so statused at the time of the levy of the executions (i.e., that he did not then have a family dependent upon him) as to entitle him to claim a homestead in the land sought to be subjected. From that judgment appellant prosecutes this appeal.

        An examination of our opinions show beyond controversy that whether or not an abandonment of what is called a "homestead" — acquired under the provisions of Section 1702 of Baldwin's 1936 Revision of Carroll's Kentucky Statutes — has or not been abandoned is one to be determined by the specific facts of each individual case. It is emphatically stated in all of our opinions that the determinative question always is — whether or not there is an abiding intention and purpose on the part of the homesteader to return to and occupy his homestead after the termination of the temporary removal therefrom, which it is insisted constituted the abandonment? The opinions point out that such intention is to be gathered — not only from the declarations of the homesteader — but from his actions, plus what might be termed the surroundings and environments accompanying such temporary absence from occupancy.

        We will not lengthen this opinion by the insertion of excerpts from those referred to, but our general statement as to their holding is vouched for as correct and the specific expressions of the court in stating them may be found by the reader consulting them. The question, as will be found in reading the opinions, has arisen not only under rights accruing under section 1702 supra of our Statutes, but likewise as to rights of occupancy accruing under sections 1707 and 1708 of the same statutes. There is a marked distinction between the two rights as is pointed out in a number of the cited opinions supra, and which is particularly emphasized in the Brewer case. The right given by section 1702 is, strictly speaking, one of exemption of the property dealt with therein from levy and sale under execution, but which has come to be designated as a right of "Homestead;" whereas the rights given by sections 1707 and 1708 are strictly "rights of occupancy" by a surviving spouse after the death of the other one, and which the deceased one owned at the time of his or her death. Some of the opinions supra, as well as the text in 29 C.J. 791, section 25, appear to hold — as is stated in the Corpus Juris volume — that "Where one has acquired a homestead right as a householder, such right continues so long as the householder continues to occupy it, whether he loses one or all of the members of his family."

        In support of that text there is cited among others, the case of Evansville Coffin Company v. Sumner, 226 S.W. 363, where the distinction between the rights acquired under the sections of the statutes referred to are discussed and clearly pointed out, and wherein we said, inter alia. "To have created in appellee the right of homestead in the property under  [section] 1702, he must have owned an estate therein and occupied same, and in addition have been at the time of its creation a bona fide housekeeper with a family; but its continuance, when once created, is not dependent upon the continued existence of a family," and cases found in notes to section 1702 are referred to in support of that statement, and which are: Stults v. Sale, 17 S.W. 148.

        On the other hand there are other domestic cases which appear to hold that the exemption right acquired under section 1702 will not be available to the owner against appropriation for his debts if at the time the appropriation is sought he has ceased to be the head of a family. Although it seems to be the well settled rule that the right under section 1702 after having once accrued survives, notwithstanding the family has become disintegrated and no longer exists. See 13 R.C.L. 666, section 122. But whatever may be the correct rule in the respects indicated, the facts in this case material to the question of abandonment clearly show — by both words and action — a settled determination on the part of appellant not to relinquish his exemption rights in and to his inherited farm in Ohio county, but to return to it when conditions were propitious. In addition to reserving space for needless household furniture, throughout his entire rentals of it while absent therefrom, he did actually return to it and occupy it long before his wife sought and obtained a divorce from him and for sometime thereafter his infant son resided with him upon the premises. The judgment of divorce did not relieve him of the legal obligation to support and maintain that infant child, but which obligation rested upon him at the time of the levy of the executions in favor of appellees. The fact that the court fixed the temporary home of that infant with its mother did not lift the burden of its support and maintenance from the shoulders of appellant, and especially is that true when the judgment itself fixed that status only for the period of the mother's widowhood and expressly provided that upon her re-marriage — if it should occur — the status of the infant was subject to arrangement between the mother and father, and the right of the widow to the custody of the child under the judgment thereupon immediately ceased.

        We, therefore, conclude that appellant did not abandon his right of homestead exemption in and to the Ohio county farm inherited from his father, and that at the time of the levy of the execution his family consisted of himself and his infant son whom he was under a legal obligation to maintain and support, although the son at the time was not permanently residing with him, but who continued to visit him from time to time and remained with him on occasions as long as two or three weeks. Throughout the separation period, both before and after the granting of the divorce, appellant contributed, according to his undenied testimony, to the fullest extent of his financial ability to the maintenance and support of his infant son, although the amount was small but in the aggregate it was practically all of the net earnings of appellant in his apparently hard struggle for existence. During all that time he himself was most frugal in his habits and meagerly provided himself personally out of his earnings in order that he might be more abundantly prepared to contribute to the welfare of his infant son. Such was the nature of his testimony, and which is uncontradicted by any other proof or circumstance in the case. Having found that appellant's infant son was a member of his family at the time of the levy of the executions in favor of appellees, and that he was under a legal obligation to maintain and support his son, it becomes unnecessary to determine whether or not he was entitled to his exemption rights, even though he had no one dependent upon him at the time the appropriation of the farm was sought.

        We, therefore, conclude that the court erred in dismissing plaintiff's petition, and the judgment is reversed, with directions to set it aside and to render one conforming to the principles of this opinion.

Saturday, November 4, 2017


JAMES MILLER, Esq., Ohio County, was born in Shelby County, Ky., November 25, 1821, and in 1824, his parents removed to Ohio County, Ky. His father was James Miller, a native of Culpeper, County, Va., born in 1789. His mother was Amy S. (Anderson) Miller, born in New Jersey in 179l. James Miller, Sr., was a farmer and cabinet-maker by occupation, and was deputy sheriff, assessor and magistrate in Ohio County many years, and resided near the Panther Creek Baptist Church. He died January 1, 1871; his wife, Ann (Stout) Miller, died three days later, January 4, 1871, and both were buried in the same grave in the Panther Creek Cemetery. The grandfather was Robert Miller, who died in Shelby County, Ky. James and Amy Miller were the parents of ten children, of whom our subject is the sixth. He was married November 7, 1847, to Malvina, fourth child of Hilary and Margaret Bell. Mrs. Miller was born December 11, 1824, in Daviess County, and died November 5, 1874. They had nine children, of whom six are now living. James H. died August 30, 1852; William E. died October 19, 1872; Estil died March 27, 1871; Margaret S., Francis, Virgil (married to Mollie C. Ford), Nathaniel C. (a professor of music at Sacramento, McLean County; he was educated at Valparaiso, Ind.), James B., and Susan D.  Mr. Miller received a good education in the schools of Ohio County, and at the age of twenty-one purchased his present farm of 165 acres of excellent land with pleasant and commodious farm buildings. In 1874, he was elected to the office of justice of the peace, for Ohio County, in which office he is now serving his third term. He is a leading member of the Baptist Church, at Panther Creek. Is a strong temperance man; and has been a member of the different temperance organizations of the day. He takes a deep interest in all progressive movements. In politics he is a Democrat.

Source: J. H. BATTLE, W H. PERRIN, & G. C. KNIFFIN 1895

Note:  Mr. Miller died 23 Sep 1905 and is buried in Panther Creek Baptist Church Cemetery, Daviess County, KY.

Panther Creek Baptist Church