Crouch v. Huffstutter

1 Ky. Op. 453, 1867 Ky. LEXIS 288

• Court: Court of Appeals of Kentucky
• Decided: June 29, 1867
• Status: Published

Opinion

Opinion op the Court by

Judge Robertson:

As the will postpones a partition until after the death of the idiot, John, as well as of his mother, and John still survives, the appellants are not now entitled to partition. But the heirs of David Huff stutter are entitled to all his rights as joint devisees with the appellee James Huffstutter, and consequently they have a right to enjoy their share, as he might do if still alive, by joint occupancy or otherwise. At the idiot’s death, therefore, the appellants or their heirs will be entitled to an allotment of their proper shares of the joint property devised to David and James, and, in the meantime, they are entitled to their proportionate share of occupancy or profits, after deducting the maintenance charged on the land. The petition alleges that there will be profits or rents after making that deduction. The allegations of the petition make, therefore, a prima facie case of title to some relief, and consequently the demurrer ought to have been overruled. It would be prudent, however, to make all David’s heirs parties.

Wherefore, the judgment is reversed and the cause remanded for answer and further proceedings for ascertaining the extent of profits or whether any since David Huffstutter’s death, and for general relief as far as appellants may show themselves entitled to it.