Power v. Dougherty 83 Ky. 187

83 Ky. 187

Case 26 — PETITION EQUITY —

June 18.

Power v. Dougherty.

APPEAL PROM BATH CIRCUIT COURT.

Up an inpant dies without issue, having title to real estate derived from one of his parents, the whole descends to the kindred of that parent, provided such kindred are not more remote than the grandfather, grandmother, uncles and aunts of the infant; and in determining' how the estate shall pass, as between the kindred of the parent from whom the title was derived, it is not material hpw or from whom the parent obtained the title.

In this case the infant’s estate having been inherited from his mother, it is held that upon his death without issue it passed to his maternal grandfather and not to his maternal uncles and aunts, although his mother obtained the estate through her mother and not through her father.

ZR. GUDGELL & SON por Appellant.

Upon the death of the infant without issue the estate derived by him from his mother passed to her kindred, without regard to how she had obtained title. Therefore, his uncles and aunts on the mother’s side are to be preferred to his grandfather on the same side. (General Statutes, chapter 81, section 9, page 371; Yice v. Yice, &c., MS. Op., November 8, 1881; Driskill v. Hanks, &e., 18 B. Mon., 862; Talbott’s Heirs v. Talbott’s Heirs, 17 B. Mon., 9.)

T". B. YOUNG por appellee.

"Yhe infant’s estate descended to his grandfather on the mother’s side in preference to his uncles and aunts on the same side. (General Statutes, chapter 81, sections 1, 9.)

*188JUDGE PRYOR

delivered the opinion op the court.

The will of Ambrose Jones, of Bath county, devised his land to his widow for life, and the remainder to be equally divided between his four surviving children and the children of a deceased daughter.. One of the children of the deceased daughter mar- / ried Jerry Power, and died, leaving one child. The child died in infancy, and the question arises as to-the manner of descent from the infant to its kindred. The infant had neither brother nor sister, but. uncles and aunts on the mother’s side, and also a. grandfather on the mother’s side. The court below held that the land passed to the grandfather.

The statute provides: “If an infant dies without issue having- title to real estate derived by gift, devise or descent from one of his parents, the whole shall descend to that parent and his or her kindred,, as hereinbefore directed, if there is any; and if none,, then in like manner to the other 'parent, and his or' her kindred; but the kindred of one shall not be so-excluded by the kindred of the other parent, if the latter is more remote than the grandfather, grandmother, uncles and aunts of the intestate, and their' descendants.” (General Statutes, chapter 31, section 9.)

By this express provision of the statute, the child dying under age and having derived title to the land from the mother, the estate passes to the kindred on the mother’s side, and the maternal grandfather, surviving the infant, inherited the estate. The-maternal kindred of the child took the estate, and not those who were the next of kin to its great-*189.grandfather, the devisor from whom the mother derived the estate. It is not a question as to how or from whom the mother of the infant obtained the title. If the mother was invested with such an •estate in the realty, as passed from her at her death to her child, and the child dies in infancy, the realty passes to its kindred on the mother’s :side, if not more remote than the grandfather, grandmother, uncles and aunts.

The judgment of the court below being in accordance with this view of the question presented, must ,be affirmed.

Power v. Dougherty
83 Ky. 187

Case Details

Name
Power v. Dougherty
Decision Date
Jun 18, 1885
Citations

83 Ky. 187

Jurisdiction
Kentucky
Court
Kentucky Court of Appeals

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