Case One of Four
293 Ky. 772
Court of Appeals of Kentucky.
GILLIAM v. GILLIAM et al.
March 5, 1943.
Rehearing Denied May 7, 1943.


Appeals from Circuit Court, Knox County; Flem D. Sampson, Judge.
Action by Carrie Gilliam against P. A. Gilliam and others seeking a division in kind of a jointly owned farm. From the judgment confirming commissioners' report dividing the property, plaintiff appeals and defendants cross appeal.

Affirmed.

Judgment determining the divisibility of a tract of land and confirming commissioners' report would not be disturbed where evidence as to values was conflicting and trial court made personal inspection of premises.
Hiram H. Owens, of Barbourville, for appellant.
J. D. Tuggle and Sampson Knuckles, both of Barbourville, for appellee.

THOMAS, Justice.
Thomas G. Gilliam died intestate and childless while a resident of Knox county on October 2, 1940. He left surviving him his widow, the appellant and plaintiff below, Carrie Gilliam, and four brothers and one sister, who are the defendants and appellees here. At the time of his death he and his surviving wife jointly owned in equal parts the farm in Knox county upon which they resided, which it is alleged contained 200 acres of more or less rough mountain land, portions of which were underlaid with mineable coal seams and possibly gas deposits--evidence of the latter being only the discovery of gas on other tracts in the vicinity. A survey of the land made during the course of this litigation developed that the tract contained 226 acres and 76 rods instead of the reputed 200 acres as alleged in the petition.

On May 20, 1941, the surviving widow, appellant Carrie Gilliam, filed this equity action in the Knox circuit court against her husband's four brothers and only sister, wherein she sought a division in kind of the jointly owned farm, one-half in value to her, and the other half jointly to defendants. Her petition also sought allotment of dower in her husband's one-half interest in the land, and that her part be laid off so as to include the residence of the couple. The latter was a two-story building containing nine rooms, and surrounding it were some other out-buildings, including a barn and a garage equipped with some living rooms. A public highway intersected the farms in its north portion, the garage and the rooms connected with it being located immediately upon it. The residence was built some twenty-eight years ago and was considerably out of repair, as was also true of appurtenant buildings.

Defendants contested in their answer the divisibility of the farm in kind without material injury to each divided portion, and asked for a sale of the land and division of the proceeds among the respective owners in the ratio of their individual interests. Two volumes of testimony were taken by depositions on the issue of divisibility as prayed for by plaintiff--after which that issue was submitted to a special judge, who held that the farm could be divided in kind as insisted on by plaintiff, the widow. That determination was followed by the appointment of commissioners to make the division, one of whom was the county surveyor, who made a survey of the farm according to the calls in the muniments of title, and made a plat thereof which he filed as a part of his testimony. The other two commissioners did not agree, as to the location of the dividing line, which disagreement was followed by their resignations. Their substitute appointees did agree, and the plat made and filed by the surveyor shows the location of the dividing line--the allotment of the commissioners being 86 acres and 79 rods to the widowed plaintiff, and 139 acres and 58 rods jointly to the collateral heirs.

Both sides filed exceptions to the report, which were tried before the regular judge of the court upon parole testimony heard and transcribed by the court's stenographer, a copy of which is made a part of the record by a bill of exceptions. It consists of 138 typewritten pages. After the evidence was heard the presiding judge personally visited and inspected the premises, which fact is recited in the judgment and admitted by respective counsel. He then overruled both parties exceptions and confirmed the commissioners' report, from which judgment plaintiff prosecuted this appeal, and defendants moved and were granted a cross appeal from the court's ruling on the exceptions to the commissioners' report, and also from the judgment of the special judge sustaining the right of division in kind and rejecting their prayer for a sale of the premises and a division of the proceeds. Before judgment was rendered on the exceptions plaintiff filed renunciation of her claim of dower in and to the joint interest of her husband and consented that the division might be made with that claim eliminated from the case.

It will thus be seen that the extensive legal battle at best was waged over a more or less small stake. The exceptions to the commissioners' report were, of course, based upon the contention of respective contestants that they were discriminated against and were not allotted their proportionate part of the entire tract according to value of the whole, and it was to those issues that the testimony heard by the special judge was directed. Each party introduced witnesses of practically equal number to sustain their respective contentions-- the widow claiming that the allotment to her was of less value than one-half of the value of the entire tract; whilst defendants not only denied that contention, but also insisted by their exceptions that they were likewise discriminated against for a like reason. The relinquishment of appellant's claim to dower in her husband's half interest in the tract was, as we gather from the record, to strengthen her desire to be allotted the residence on the jointly owned land for her future occupation, and which--in morals at least-- would entitle her to a corresponding advantage in the division of the tract wherein she was allotted the residence and appurtenances. Each side contends that the bottoms or valleys on the farm--furnishing the only first class agricultural land--were unequally divided, and the same contention is made by both sides to the litigation with respect to the timber on the land. Arguments are also directed to an inequality of division of the possible working seams of coal and gas underlying the land; but those contentions--with reference to possible underlying minerals--are purely speculative and have no substantial foundation. The bottom land was divided by the commissioners in about, if not the precise, ratio of the entire allotted acreage between the respective owners, and attention appears to have been given by the commissioners to the allotment of growing timber to each of the parties; but, as stated, each of them contends that they did not receive their just proportion of either bottom land or growing timber upon the tract.

More or less persuasive arguments are made by attorneys for each side in behalf of their clients in support of their respective contentions with reference to the disputed issues, and the testimony is so contradictory with reference thereto that if we were called upon to determine them solely upon the testimony contained in the record we would find ourselves in an embarrassing dilemma comparable to the situation of a hung jury. The court, no doubt, knew the witnesses, some of whom resided in Barbourville, where he also resides; whilst the others lived only some five or six miles therefrom in the vicinity of the divided land--thus enabling him to weigh and consider the testimony of each witness far more efficiently than we are able to do from the record alone. In addition thereto, he personally viewed the premises and thereby obtained first hand information as to the material and pertinent facts, which of itself furnishes more or less potent aid to a proper determination of the issues in this character of case.

The undeviating rule, followed by this and other appellate courts, is that findings of facts by a chancellor will not be disturbed or set aside, unless the reviewing court entertains more than a doubt as to the correctness of such findings. There can scarcely be presented a case for the application of that rule any more so than the instant one, and which statement applies to both judgments under review--i. e., the one determining the divisibility of the tract of land made by the special judge and questioned on the cross appeal--and the one disposing of the exceptions of both parties to the commissioners' report. Both of the divided parcels border on the public road--thus forming an outlet to each of them, and the testimony on the disputed items of value is so contradictory as that the personal inspection made by the chancellor might well have resolved any doubts he may have had in reaching his conclusions.

Following the rule supra--which for the reasons stated is preeminently applicable in this case--we are unable to discern any substantial reasons for disturbing either of the judgments appealed from, and because of which they are affirmed on both the appeals and cross appeal.

Ky.App. 1943.
GILLIAM v. GILLIAM et al.
170 S.W.2d 343, 293 Ky. 772
Case Two of Four
Gilliam v. Gilliam
194 S.W.2d 75
Ky.,1946
April 19, 1946.


Appeal from Circuit Court, Knox County; B. B. Snyder, Special Judge.
Action by Carrie Gilliam, administratrix, and Carrie Gilliam, widow and in her individual right, against P. A. Gilliam and others for the sale of Tom Gilliam's real estate to satisfy decedent's debts. From an adverse judgment, petitioner appeals.

Judgment affirmed.

SIMS, Justice.
Carrie Gilliam as administratrix of her deceased husband, Tom Gilliam, brought this action to settle his estate. The petition averred that he was indebted to her as well as to others and that there was insufficient personal property to satisfy decedent's debts and asked that his real estate be sold for that purpose. After hearing considerable proof the chancellor adjudged that the estate was indebted to appellant in the sum of $528.09, which with her exemption of $750 made the amount of $1278.09 due her from the estate. But the chancellor charged appellant with items aggregating $1389.66, therefore he gave judgment against her for $111.57, the difference between these two sums. It is Mrs. Gilliam's contention that she should have been charged with only $1001.16 and that instead of her owing the estate $111.57, it was indebted to her in the sum of $276.93, and she moves this court to grant her an appeal.

There is no controversy concerning the items which compose the $1278.90 the chancellor held the estate was indebted to Mrs. Gilliam. But Mrs. Gilliam claims to be the owner of all the livestock and that the household goods charged to her were worth only $150. However, the chancellor held that this livestock was jointly owned by the widow and her deceased husband and charged her with one-half of its value, and further charged her with $250 as the value of the household goods which she insists was worth only $150. These two items make up the $388.50 about which the parties differ.

The proof as to the ownership of the livestock and as to the value of the household goods is highly conflicting and the most that can be said is that there may be some doubt in our minds as to whether or not the chancellor's decision is correct. The rule in such instances is that we will not disturb the findings of fact by the chancellor.

Appellees insist that as the judgment rendered against Mrs. Gilliam was only $111.57, this court has no jurisdiction to hear this appeal. The amount governing the right of appeal by a losing plaintiff is the sum his evidence shows he is entitled to recover, credited by any sum the chancellor might have allowed him in the judgment sought to be reversed. According to the evidence of Mrs. Gilliam she should have been credited with $1278.09 and charged with $1001.16, and judgment should have been rendered in her favor for $276.93, But the chancellor found she should be charged with $1378.66 and rendered judgment against her for $111.57. The amount in controversy is not the amount of the judgment of $111.57 but is the amount Mrs. Gilliam's evidence shows she was entitled to, $276.93, plus $111.57, the amount of the judgment rendered against her, or $388.50. Therefore, it is apparent that we have jurisdiction to entertain this motion for an appeal, as the amount in controversy exceeds $200. However, as stated in the preceding paragraph, we are not disposed to interfere with the chancellor's judgment.

The land of the decedent sought to be subjected to his debts is described in the petition as his 'one-half undivided interest in a farm on Bowman Branch' and the description continues by bounding the whole farm on the four points of the compass by the adjacent landowners. The petition recited the land had been recently divided by an order of court and when that judgment became final the description of the land would be adopted in the instant action. Gilliam v. Gilliam, 293 Ky. 772, 170 S.W.2d 343 (SEE ABOVE CASE). The land was partitioned between Mrs. Gilliam of the one part and the heirs of her husband of the other part and a survey and a plat were there made of the two parcels. However, that definite and certain description of decedent's land, the sale of which is now sought, was never incorporated into this record as the petition stated it would be. The judgment of sale in the instant action describes the land to be sold as 'one- half of the T. G. Gilliam farm heretofore allotted to the heirs of T. G. Gilliam' and then follows the description of the entire farm, which was owned jointly by the decedent and appellant.

After the judgment was entered appellant filed motion to have the chancellor insert the correct boundary in the judgment, reciting it easily could be ascertained from the record in Gilliam v. Gilliam, 293 Ky. 772, 170 S.W.2d 343. This motion does not appear to have been acted upon by the chancellor but in appellee's brief it is insisted that the motion, coming after judgment, was not seasonably made. Although this motion should have been made earlier, it did not come too late. We presume that it will be sustained as it is hard to conceive that a court would do the vain thing of selling a tract of land to pay a decedent's debts when due to an erroneous description in the judgment, which was called to the court's attention, the land ordered to be sold was not that owned by the decedent.

Our reason for granting this appeal and writing an opinion affirming the judgment wherein the amount in controversy is more than $200 but less than $500 is so that there may be no confusion in the description of the land to be sold and that the tract alloted to the heirs of decedent will be sold to pay his debts and that the tract allotted to the widow will not be sold for that purpose.

The judgment is affirmed.

Ky.,1946
GILLIAM v. GILLIAM
194 S.W.2d 75, 302 Ky. 129
Case Three of Four
Gilliam v. Gilliam
206 S.W.2d 199
Ky. 1947
Nov. 25, 1947.


Appeal from Circuit Court, Knox County; J. B. Johnson, Judge.
Action by Carrie Gilliam against P. A. Gilliam and others to have probated an alleged will of plaintiff's late husband, Thomas G. Gilliam, deceased. Judgment for defendants, and plaintiff appeals.

Affirmed.

Joint wills are valid when they are based upon a contract, and in such instances estate is impressed with a trust for use and benefit of legatees, so that, while survivor may revoke joint will, legatees under it may invoke aid of equity and enforce the trust.
J. J. Tye and H. H. Owens, both of Barbourville, for appellant.
Victor Jordan and Kenneth H. Tuggle, both of Barbourville, for appellees.

CAMMACK, Justice.
This action was instituted in March, 1946, by the appellant, Carrie Gilliam, to have probated in the Knox Circuit Court an alleged will of her husband, Thomas G. Gilliam, who died in 1940. The will offered for probate directed that all of Mr. Gilliam's property go to his wife after the payment of his debts, and she was named as executrix. After demurrers filed by the appellees, defendants below, were overruled, they filed a plea of estoppel, which was based on the ground that Mrs. Gilliam had filed an action in 1941 to settle her husband's estate, wherein she alleged that he died intestate. After controverting the pleading of the appellees Mrs. Gilliam set forth in an amended petition that she and her husband entered into a mutual agreement and undertaking in 1937 under which each would execute to the other a will to their interest in jointly owned property. The amended petition set forth also that the wills were prepared by the same draftsman and witnessed by the same witnesses. It was further set forth that Mrs. Gilliam's will had disappeared, and if it was canceled or changed it was done in violation of the alleged mutual agreement and without the appellant's knowledge. A demurrer was sustained to the amended petition. Juries in both Knox County and the Knox Circuit Court returned verdicts against Mrs. Gilliam; hence this appeal.

Mrs. Gilliam is now contending that the court erred in sustaining the demurrer to the amended petition. On the other hand, the appellees insist their plea of estoppel was good and that the court properly sustained a demurrer to the amended petition. Since we are of the opinion that the plea of estoppel was good, we shall confine our consideration of the case principally to that question.

We have noted that Mrs. Gilliam as executrix filed a suit in 1941 to settle Mr. Gilliam's estate. In her petition in that action she alleged that her husband died intestate. Mrs. Gilliam appealed that case to this Court. Gilliam v. Gilliam, 293 Ky. 772, 170 S.W.2d 343. Another action concerning the estate of her husband was instituted by Mrs. Gilliam and that action was brought to this Court by her. Gilliam v. Gilliam, 302 Ky. 129, 194 S.W.2d 75. It was not until some six years after the death of her husband that Mrs. Gilliam instituted this action wherein she sought to have her husband's will probated. Her pleadings and her evidence show conclusively that she knew her husband had made a will in 1937, yet, in 1941, she alleged that he died intestate. Undoubtedly, she knew that the will had been destroyed. It is significant also that in 1939 she accepted a deed from her husband to a part of the property which they owned jointly. In all probability the will had been destroyed prior to that time. We do not think that Mrs. Gilliam can be heard to say now that her husband's will was lost or destroyed without her knowledge, when, in fact, she alleged in 1941 that her husband had died intestate. There is nothing in the record before us which would indicate that Mrs. Gilliam had been in any way misled or misinformed about any event or happening between the execution of Mr. Gilliam's will in 1937 and the time of his death in 1940.

Reference to the recent case of Watkins v. Covington Trust & Banking Co., 303 Ky. 644, 198 S.W.2d 964, will show that joint wills have been upheld in this jurisdiction when it was shown that they were based upon a contract. In such instances the estate is impressed with a trust for the use and benefit of the legatees, and, while the survivor may revoke the joint will, legatees under it may invoke the aid of a court of equity and enforce the trust. Mr. and Mrs. Gilliam may have made similar wills on the same day, but there is nothing whatever in the will offered by Mrs. Gilliam which would indicate on its face any evidence of a contract to make joint wills.

For the reasons given we think the judgment should be and it is affirmed.

Ky. 1947
GILLIAM v. GILLIAM
206 S.W.2d 199, 306 Ky. 102
Case Four of Four
Gilliam v. Gilliam
240 S.W.2d 626
Ky.,1951
June 12, 1951.


Carrie Gilliam brought action against P. A. Gilliam and others to set aside a judgment after term on ground that it was obtained by fraud. The Circuit Court of Knox County, J. B. Johnson, J., entered a judgment for the defendants, and plaintiff appealed. The Court of Appeals, Cammack, C. J., held that petition was insufficient.
Judgment affirmed.

CAMMACK, Chief Justice.
This is the fourth case we have had before us since 1941 involving disputes between Mrs. Carrie Gilliam and the heirs of her deceased husband. Gilliam v. Gilliam, 293 Ky. 772, 170 S.W.2d 343; Gilliam v. Gilliam, 302 Ky. 129, 194 S.W.2d 75; Gilliam v. Gilliam, 306 Ky. 102, 206 S.W.2d 199.

This action was instituted under subsection 4 of Section 518, of the Civil Code of Practice. It was charged that a judgment in a previous action had been obtained by fraud. Mrs. Gilliam said her petition as originally drawn stated that her husband had died testate, but while the pleadings were in the office of the Circuit Court Clerk the petition was made to read that her husband had died intestate. There was the further allegation that Mrs. Gilliam's husband had died testate and that she and her husband had executed joint wills prior to his death. The appeal is from an order sustaining a demurrer to the petition.

It has been pointed out frequently that, in an action to set aside a judgment after term on the ground that it was obtained by fraud, the facts constituting the fraud of the successful party must be set out specifically and fully and that a general allegation of fraud is not sufficient. The only basis for the charge of fraud in Mrs. Gilliam's petition was that one of the defendants in the original action was related to the Circuit Clerk, and that the records were changed while in the custody of that officer. There was no charge that any of the defendants altered the records, or that they were changed with their knowledge or at their direction. Under the circumstances, we think the demurrer was properly sustained to the petition.

Judgment affirmed.

Ky.,1951
GILLIAM v. GILLIAM
240 S.W.2d 626


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