This action, involving settlement of the estate of John T. Mills, deceased, presents a number of complicated questions. The complications arise from the fact that over a period of years before John T. Mills' death, and during the proceedings in the settlement suit in the circuit court after his death, there was a general disregard by everyone concerned of the law relating to real property and conveyancing. The briefs are not very helpful.
There are questions raised on this appeal concerning the alleged conversion of certain items of personal property, including two mules, a washing machine, some store goods, a stove and a refrigerator, and concerning a debt claimed to be owed to the estate by Homer Mills, a son of John T. Without elaboration, we will say simply that we find no reversible error in the circuit court's judgment with respect to these items.
The main contention concerns the ownership of various parcels of real estate, and the widow's dower rights. Aligned on one side are the widow and a daughter; on the other side are two sons and a grandson (child of one of the sons). One of the sons, Homer, has an assignment from his brother, Clarence, of any interest Clarence might have in the estate.
Prior to the death of John T. Mills, two tracts of land were conveyed to Leo Mills, infant son of Homer and grandson of John T. One of these tracts, which we will call the Smallwood Tract, was conveyed to Leo by Chester Smallwood, at the direction of John T. Mills. It is claimed by the widow that this tract belonged to her and John T. jointly, by virtue of a deed executed by Smallwood in 1930, which subsequently was lost or stolen. The other tract, which we will call Tract B, purportedly was conveyed to Leo by John T., without his wife's signature, a few weeks before John T.'s death. The widow claims this deed is a forgery.
In the settlement suit, Leo was made a party defendant, but although the pleadings showed that he was an infant about three years of age, and had no statutory guardian, the suit proceeded to final determination without there being a guardian ad litem appointed for him. The court adjudged that Leo was the owner of the two tracts, subject to the widow's dower interest, but that the value of the improvements placed on the two tracts by Homer Mills should be excluded in allotting dower.
We think it is clear that the court erred in its judgment concerning the Smallwood Tract. The evidence was undisputed that around 1930 Smallwood did execute a deed to this tract, either to John T. Mills alone or to John T. and his wife jointly. The deed was delivered, but not recorded. The widow says that Homer Mills stole and destroyed it. The widow testified positively that she was named as a joint grantee in the deed. Smallwood could not remember whether or not this was so. Homer admitted seeing the deed, but did not state positively that his mother's name was not in the deed.
Under the proof, there was nothing to contradict the widow's testimony that she was named as a joint grantee in the 1930 deed, and therefore the court should have adjudged that she was the owner of an undivided one-half interest in this tract, plus a dower interest in the other one-half. Clearly the deed from Smallwood to Leo Mills was a nullity, because Smallwood had no title at the time. Mills v. Epperson, Ky., 259 S.W.2d 687.
With respect to the improvements on the Smallwood Tract, there was evidence justifying a finding that most of the improvements were made by Homer Mills, while he occupied the tract with his parents' consent during most of the period from 1930 to his father's death in 1950. However, it is admitted by Homer that there was a small house on the premises to begin with. We think it would be proper, in view of the circumstances under which the improvements were made by Homer, to allow him or his son Leo a lien on the land for the amount by which the value of the land was increased by such improvements.
Homer makes some claim of title to the Smallwood Tract by adverse possession, but it is clear that his occupancy of the premises from 1930 to 1950 was by permission of his parents, and not under a claim of title. He also makes a claim of an oral gift of the land, which of course would not be enforceable. Furthermore, he contends that he paid part of the original purchase price of the land, but we think the evidence establishes only that he paid Smallwood $50 for executing the deed to Leo.
Although this is an equity case, we cannot direct the judgment to be entered, because Leo has not been represented by a guardian ad litem. Upon remand of the case, the court should appoint a guardian ad litem, and permit him to assert any claim of ownership he may have to the Smallwood Tract, and any defenses he may have to the widow's claims of title. If the assertions and defenses, and the evidence supporting them, are substantially the same as upon the first trial, the court should adjudge the widow the owner of an undivided one-half interest, plus a dower right in the other one-half, with title to the latter one-half being in the heirs of John T. Mills. The court also should hear evidence as to the amount by which the value of the tract was increased by improvements made by Homer, and award him or Leo a lien for that amount.
In passing this phase of the case, it perhaps should be mentioned that Homer contends his mother relinquished any claim to her husband's lands in Clay County, where their home was, by reason of an oral separation agreement entered into some three years before the husband's death, pursuant to which she deeded to her husband certain land she owned in Clay County, and he deeded to her certain land he owned in Knox County. However, there was no formal, written relinquishment by her of her rights in any land her husband owned in Clay County, and it is a settled rule of law that interests in real estate cannot be conveyed away orally. See Wigginton v. Leech's Adm'x, 285 Ky. 787, 149 S.W.2d 531.
Concerning Tract B (the one conveyed by John T. Mills to Leo), the evidence supports the finding of the chancellor that the deed was in fact executed by John T. Mills, although there was some evidence that the deed was a forgery. No fraud or duress was shown. Although the pleadings and evidence indicate that there was no consideration for the deed, other than love and affection, this is immaterial. There was no effort by the heirs to have the value of this tract charged against Homer as an advancement, as probably it should have been. See Hamilton v. Moore, 70 S.W. 402, 24 Ky. Law Rep. 982; Weddle v. Waddle's Adm'r, 261 Ky. 208, 87 S.W.2d 383. We think the court properly adjudged title to this tract to be in Leo, subject to the widow's dower.
Aside from the two tracts hereinbefore mentioned, John T. Mills owned at the time of his death three other tracts in Clay County, including the "home place'. The widow claimed to own an undivided one-half interest in the home place, and a dower interest in the remaining one-half and in the other two tracts. However, at the time of the trial she was unable to produce any evidence of her joint ownership of the home place. She did make a vague claim of a homestead right, but it is clear that she had abandoned any right of homestead by not occupying the property.
The court adjudged that the widow was entitled to dower in the home place, but was not entitled to dower in the other two tracts because she had deeded them to her husband, some three years before his death, in exchange for some lands he owned in Knox County. The court ordered the three tracts sold, to pay administration expenses and debts. The tracts were appraised as a single unit at a value of $1,000, and were sold as a single unit for a price of $2,246.75. From the proceeds of sale there were deducted costs and expenses in the amount of $503.95, and debts in the amount of $1,342.94, leaving a balance of ...