October 5, 2012

Sarah McCall v. James McCall's Heirs, Rockcastle, 1870

Sarah McCall v. James McCall's Heirs.


4 Ky. Op. 591; 1870 Ky. LEXIS 431

June 2, 1870, Decided


DISPOSITION: Judgment affirmed. 

COUNSEL: Hill & Alcorn, for appellant.

G. O. R. McCall, for appellees. 

JUDGES: Judge Peters. 



 [*591]  Opinion of the Court by Judge Peters:

In two answers and a cross-petition, filed in the case by appellant, she expressly and repeatedly admits that the instrument under which appellees claim the personal estate of the late James McCall is a deed, and has not subsequently withdrawn those admissions, consequently the question as to whether the writing be a will or a deed, so elaborately discussed by appellant's counsel, is concluded by her admissions in her pleadings.

Nor do we perceive any error in the judgment prejudical to appellant in any other particular. By the terms of the instrument, the whole of the personal estate of the grantor passed to the beneficiaries; he only reserved to himself the right to control and manage the same during his life, in the event that he should choose to do so; to improve and increase the same for the benefit of his children by his own labor and that of his servants, and to have a support out of it, and to use such part of it for religious purposes as he might think proper.

 [**2]  Such of the personal property included in the writings as remained in kind at the death of the grantor, and the additions made thereto by him by its use, appellees certainly are entitled to, and as it does not appear that any of the personal property left by decedent was acquired in any other way, except that which he took upon the death of his son, and as appellant got one-third of it, we do not discover that she is entitled to any more than was adjudged to her.

 [*592]  Wherefore, the judgment is affirmed.

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