Case one of two
24 Ky.L.Rptr. 637
Court of Appeals of Kentucky.
TYE et al. v. TYE et al.
Sept. 23, 1902.
ACTION: Reversed.


Appeal from circuit court, Knox county.
"Not to be officially reported."
Action by Henry Tye and others against George W. Tye and others for partition.
Judgment for defendants, and plaintiffs appeal.

BURNAM, J.
George Tye, Sr., died intestate in Knox county, Ky., in April, 1884, the owner of several tracts of land and a small personal estate. He was twice married. By his first wife he had nine children; by his second, Virginia, who survived him about ten years, he had five children. A division of his land among his children was had in a proceeding instituted in the Knox circuit court for a settlement of his estate. In this suit 70 acres of land was allotted to his wife as dower, and she occupied it until her death in 1895; whereupon the appellees, children by the first wife, instituted the suit against the children by the second wife, asking a partition of the dower land. The defendants, in their answer, resisted a partition of the land, and asked by way of cross- petition and counterclaim that the divers gifts from their father, George Tye, to his children, of money, choses in action, personal property, rents of land, should be charged to them as advancements, as provided by section 1407 of the Kentucky Statutes. The plaintiffs, by way of reply to so much of defendants' answer as sought to charge them with advancements, deny liability therefor. Whilst admitting they had received some property from their father, they contend that it was not given to them by way of advancements, and they also plead that defendants were estopped from asking such relief, because this question was properly before the court, and should have been determined, in the suit instituted for a settlement of the estate of George Tye, Sr., immediately after his death, and that it is now too late to go into that question. The case was referred to a special commissioner, who made an elaborate report to the court of the alleged advancements received by the children after taking a large amount of evidence by way of depositions, which accompany his report. Numerous exceptions were filed thereto by both appellants and appellees. Those filed by appellants were overruled, and those by appellees sustained, and a judgment entered directing a sale of the 70 acres of land, and a division of the proceeds equally among all the heirs at law.

The evidence taken before the special commissioner clearly shows that the children of George Tye received from their father the various items reported by the commissioner as advancement. Indeed, they do not controvert the receipt of the property, but deny that it was given as an advancement. Section 1407 of the Kentucky Statutes is as follows: "Any real or personal property or money, given or devised by a parent or grandparent to descendant, shall be charged to the descendant or those claiming through him in the division and distribution of the undevised estate of the parent or grandparent; and such party shall receive nothing further therefrom until the other descendants are made proportionately equal with him, according to his descendable and distributable share of the whole estate, real and personal, devised and undevised. The advancement shall be estimated according to the value of the property when given. The maintaining or educating, or giving of money to a child or grandchild, without any view to a portion or settlement in life, shall not be deemed an advancement." We think that under this provision of the statute the special commissioner properly charged both appellants and appellees with the various sums received by them as advancements, and that the trial court erred in not overruling the exceptions filed thereto; and the various children and devisees should be equalized, as far as practicable, out of the proceeds arising from the sale of the dower land. But we are of the opinion that they are estopped from asserting any claim to property distributed among the heirs at law under the judgment rendered in the suit instituted for a settlement of the estate of Geo. Tye, Sr., shortly after his death.

For reasons indicated, the judgment is reversed, and cause remanded for proceedings consistent with this opinion.

Ky.App. 1902.
TYE et al. v. TYE et al.
69 S.W. 718, 24 Ky.L.Rptr. 637



Case two of two
26 Ky.L.Rptr. 939
Court of Appeals of Kentucky.
TYE et al. v. TYE et al.
Nov. 15, 1904.
ACTION: Affirmed.


Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by Henry Tye and others against George W. Tye and others.
From a judgment for plaintiffs, defendants appeal.

NUNN, J.
This is the second appeal of this case, the opinion on the first appeal being in 69 S. W. 718, 24 Ky. Law Rep. 637. On the return of the case to the lower court a special judge could not be agreed upon by the parties, and this fact was certified to the Governor, and he appointed and commissioned a special judge to try the case. One of the appellants (George W. Tye) made and filed an affidavit to the effect that he believed they could not have a fair and impartial trial before this special judge, and set forth the facts upon which he founded his belief, which, in the opinion of this court, were sufficient to disqualify and cause the special judge to vacate the bench. Appellants also filed an affidavit, and moved the court to grant them a continuance for the reasons stated therein, which continuance the court refused. The reasons stated in the affidavit were amply sufficient to authorize a continuance of the case. Notwithstanding these errors, the question to be determined is whether or not the judgment appealed from should be reversed.

The latter part of section 134 of the Civil Code provides: "The court must in every stage of an action disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect." In our judgment, the former opinion in this case settled all the matters in controversy between the parties, and no judgment could have been rendered, other than the one appealed from. Prior to the former appeal the commissioner had made and filed his report showing the advancements made by George Tye, Sr., to each of his children. The parties filed their exceptions to this report, and this court said in the former opinion that the trial court erred in not overruling the exceptions filed thereto, and the various children and devisees should be equalized, as far as practicable, out of the proceeds arising from the sale of the dower land. As to the other lands, which were divided between the children soon after their father's death, in an action instituted for that purpose, they are barred from seeking to sell any part of same for the purpose of equalization among themselves, as the children were all parties thereto, and are bound by the judgment rendered therein. It appears that the judgment appealed from conforms strictly to the principles settled in the former opinion, and the appellants were not prejudiced by the bias of the special judge, if biased, nor by the refusal of the continuance of the case.

Wherefore the judgment of the lower court is affirmed.

Ky.App. 1904.
TYE et al. v. TYE et al.
82 S.W. 1005, 26 Ky.L.Rptr. 939



     

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