McCown's Admr. v. Jennings

11 Ky. Op. 123, 2 Ky. L. Rptr. 315, 1881 Ky. LEXIS 179

Opinions

Opinion by

Judge Pryor:

The appellant’s intestate intended, doubtless, to make the advancement as indicated by the ans.wer, and as is evidenced by the entry or memorandum made by the testator himself; still, as said by this court in the case of Haggard v. Hay’s Admr., 13 B. Mon. (Ky.) 175, the fact of its being an advancement is inconsistent with and contradicts the writing sued on, both in its import and legal effect, — fraud or mistake should be alleged and established before such a defense could be available. It might be, as was decided in that case, that an averment to the effect that the administrator, after payment of debts, had enough in his hands to make the other distributees equal, would constitute an equitable defense, but no such defense is made.

[Abstract Kentucky Law Reporter, Vol. 2-436.]

APPEAL FROM ANDERSON CIRCUIT COURT.

Ira Julian, John Felix, for appellant. T. C. Bell, for appellee. Felix & Julian, for appellant. T. C. Bell, for appellee. May 5, 1881.

Judgment reversed and cause remanded for further proceedings.