Court of Appeals of Kentucky.
DAVIS et al. v. JONES' ADM'R.
May 6, 1893.
ACTION: Affirmed.


Appeal from court of common pleas, Knox county.

To be officially reported.

Action by W. L. Davis and Marinda Davis against George Jones' administrator for the breach of an agreement by defendant's intestate to make plaintiff Marinda his heir. From a judgment sustaining a demurrer to the petition, plaintiffs appeal.

BENNETT, C. J.
The appellants allege in their petition that George Jones agreed with the mother of appellant Marinda Davis that, in consideration of the mother surrendering the custody, care, and control of Marinda, then an infant, to him, "he would clothe, support, and educate her, and make her his heir at law, so that she could inherit all his estate." The appellants say that said Jones died without making Marinda his heir at law. They claim $5,000 damage for such failure. The court sustained a demurrer to the petition, and the appellants have appealed.

Was the agreement to make appellant Marinda the heir of George Jones binding upon him? Such agreements are against the policy of the common law, hence unauthorized, because heirship is controlled by the law of descents, having for its basis the degrees in blood, etc. And such agreements as that sued on in this case would put the estate in a different channel from that fixed by the law of descents. Such contracts being unauthorized by the common law, and, as all common contracts in this state are generally either authorized by the common law or by statute, no contract in general is binding unless it is authorized by the common law or by statute. And, as the same reason exists in this state for forbidding such contracts as exist at common law, they are unauthorized and not binding. But the legislature of this state has seen proper to authorize certain parties to make persons not related to them their legal heirs upon certain conditions by petition to the county court having jurisdiction; and it has been settled by this court that the authority thus given is the only authority existing in this state by which one person can make another his legal heir, and any agreement by one person to make another his legal heir, not in accordance with said statute, is not enforceable, and no action will lie for its breach. In this case the agreement, not being in accordance with the statute, supra, is not enforceable, and no action will lie for its breach.

The judgment is affirmed.

Ky.App. 1893.

DAVIS et al. v. JONES' ADM'R.



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