Davis v. Higgenbothom

2 Ky. Op. 134, 1867 Ky. LEXIS 435

• Court: Court of Appeals of Kentucky
• Decided: December 16, 1867
• Status: Published

Opinion

OPINION OE THE OoüRT BY

JuDGE EoBERTSON :

Considering the condition of the old father Emanuel Higgenbothom, the influence of his sons George and William who could mould him like clay in the hands of the potter, the gross inadequacy of the ostensible consideration, the strong probability that none of it' was paid by George, and the extreme doubtfulness of any payment by William, and the facts and circumstances conducing to show a fraudulent purpose and sinister consummation by these two sons, and proving that the conveyances now litigated were finally extorted from their father and mother by assurances that the lands should be held in trust for all their heirs, subject to equal distribution among them at his death. Such a trust, both express and implied, is the plain and inevitable conclusion of reason and of law.

Bradley Dunlap, for Appellant. Tturner, for Appellee.

Consequently, as the appellants had no cause of action until the old man’s death and a refusal to fulfill the trust, neither a statutory nor presumptive bar applies to this case.

Wherefore the judgment dismissing the petition against George and William is reversed and the cause remanded for further proceedings for distribution, by sale or otherwise, of the lands among all the heirs and an equitable adjustment of the rights of all parties.

But the judgment dismissing the petition against Davis is affirmed.