29 Ky.L.Rptr. 713
Court of Appeals of Kentucky.
Sept. 19, 1906.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Action by Rebecca M. Girdner against James Hampton and others.
From a judgment for plaintiff for less than the relief demanded, she appeals.

The appellant is the widow of Wm. Girdner. He died in the month of March, 1904. He was the sheriff of Knox county for the years 1888 and 1889, and failed to account to the state for its revenue in a sum exceeding $7,000. Judgment was recovered against him and his sureties for this sum. An execution was levied upon his land which was sold in satisfaction thereof. The home place, which is described in this action, consists of about 150 acres, was sold to one Sawyer for $800, and by him sold to one James Hampton, who sold 100 acres of it to his son, James Hampton, and the remaining 50 acres to one Lay. After her husband's death appellant instituted this action against appellees, Hampton and Lay, for the purpose of having dower allotted to her out of this land. Appellees answered, and alleged that they had made permanent and lasting improvements thereon, which enhanced the value thereof as much as $1,000. That part conveyed to Hampton was enhanced in the sum of $700, and the part conveyed to Lay $300. Appellant by reply controverted the allegations of the answers. The proof was heard and the court rejected the claim of Lay, but sustained the claim of Hampton to the extent of $300; that is, the court adjudged that the improvements made by Lay had not enhanced the value of the piece owned by him to any extent, but that the improvements made by Hampton had enhanced the value of his part to the extent of $300, and appointed commissioners directing them to first allot appellee, Hampton, $300 worth of land of his survey, and then allot to the appellant one-third of the remainder, and one-third of the Lay tract so that the two pieces would form one tract. From so much of the judgment allowing Hampton anything for improvements, appellant appeals.

"Whether the recovery is against the heir or devisee or purchaser from the husband, the wife shall be endowed according to the value of the estate, when received by the heir, devisee or purchaser, so as not to include, in the estimated value any permanent improvements he has made on the land." The proof introduced by appellee conduced to show that the improvements made by him enhanced the value of the land in the sum of $600 or $700, and that introduced by appellant tended to show that its value was not increased to any appreciable extent by reason of the improvements. The statute is imperative that the enhanced value of the estate, by reason of permanent improvements made by the purchaser, shall not be considered or included in the allotment of dower. The question of the enhanced value of the land, by reason of the improvements is one of fact. We have examined the evidence with care, and do not feel authorized to disturb the finding of the lower court.

The judgment of the lower court is affirmed.

Ky.App. 1906.
96 S.W. 453, 29 Ky.L.Rptr. 713

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