Appeal from circuit court, Knox county.

"Not to be officially reported."

Action by J. T. Pope and others against Polly Pope and others to enforce a trust. From the judgment, defendant Polly Pope appeals, and plaintiffs prosecute a cross appeal. Affirmed on cross appeal.

BURNAM, J.

The will of James M. Pope was probated in the Knox county court in January, 1893. He devised the use of all his landed estate to his surviving wife until his youngest child which should survive him arrived at the age of 21 years. It appears that he was married four times. His first wife was the daughter of Joshua Tye. On the 6th day of February, 1893, his surviving children by his first wife instituted this proceeding against his widow and children by the second and third wives, in which they alleged that their grandfather, Joshua Tye, advanced to their mother $900, which was paid over to their father under an express agreement that it was to be invested in the land disposed of in his will, and that the title should be taken to James M. Pope, in trust for her and her children, to the extent of the money so paid for the land, but that their father, in violation of the agreement, took the deeds to himself prior to the death of their mother in 1856 or 1857, and that, subsequent to the death of their mother, in 1860, their grandfather advanced to their father $250 more, which was paid on the land, upon the same terms and conditions. Some of the defendants are infants, some before the court by constructive service, and the surviving widow, Polly Pope, alone filed answer, in which all the averments of the petition are denied. Upon the final trial the court adjudged that there was no evidence in the record to support the averments as to the $900, and adjudged plaintiffs a lien for the $250, with interest from the date of James M. Pope's death upon the land held by the widow; and from that judgment the widow, Polly Pope, prosecuted an appeal to this court, and plaintiffs also prosecuted a cross appeal. Subsequent to the filing of the record here, the death of appellant, Polly Pope, was suggested; and, as there was no revival of her appeal within the time prescribed by the Code, it was dismissed, and the case is now submitted alone upon the cross appeal of plaintiffs in the court below.

The only evidence offered by plaintiffs in support of their contention as to the $900 is the testimony of James M. Pope, Jr., and his brother, who testify, in substance, that they heard their father, James M. Pope, say, during his lifetime, that he bought all of the land, in connection with that on which his widow now lives, with money that he received from the estate of Joshua Tye, which belonged to his first wife, and that there was an agreement between him and his wife and Tye that the land for which said money was so paid was to belong to her children at his death, if he outlived their mother. In the face of the uncontradicted testimony that James M. Pope took the title to this property to himself, occupied it for more than 30 years, and sold and conveyed the greater part of it, the evidence offered would be wholly insufficient to establish the trust, even if it were competent; but we think that under subsection 2 of section 606 of the Civil Code of Practice the testimony is clearly incompetent.

It is also contended that the chancellor erred to the prejudice of the cross appellants in failing to allow interest on the $250 adjudged them from the time this money was received by their father from their grandfather, on the 12th day of December, 1859. The only evidence to support the claim of the cross appellants to this fund is the admission in the answer of James M. Pope when sued by the administrator of Joshua Tye upon his obligation for the $250, and the averments of the petition filed by him and others for a settlement of the estate of Joshua Tye in the Whitley circuit court, neither of which support the contention that James M. Pope was to be liable for interest on this fund prior to his death. For these reasons the judgment on the cross appeal is affirmed.

Ky.App. 1900.

POPE et al. v. POPE et al.

55 S.W. 194, 21 Ky.L.Rptr. 1376, 21 Ky.L.Rptr. 1386