Furey v. Gallagher
Furey v. Gallagher
Opinion of the Court
Opinion of the Court by
Aifirming .appeal No. 31; and affirming in part and reversing in part appeal No. 32.
These two actions are considered together at the suggestion of counsel on both sides.
Both actions were instituted on the 3rd day of June, 1915, by B. J. Furey and his two sisters, Mrs. John Ward and Mary Furey, against their mother, Catherine Gallagher and her husband, Michael Gallagher. Mrs. Gallagher was twice married, her first husband being Charles Furey, father of these plaintiffs. • One of these actions seeks to correct a deed which it is alleged was, through the fraud of the defendant Catherine Furey now Gallagher, executed to her instead of to her first husband, Charles Furey, who it is charged paid the purchase price, and further to declare Mrs. Gallagher a trustee holding the property, a house and lot, for the use and benefit of herself and the three plaintiffs. In the other suit the same plaintiffs charge that their father, Charles Furey, before his death in 1886, executed a will disposing of certain personal and real estate which will they desire the court to construe as vesting in their mother a life estate only in the property devised, with remainder in the three plaintiffs; and plaintiffs also ask that their mother be required to make settlement of her account, as executrix, of the estate of Charles Furey. Charles Furey left Ireland in 1880, coming to America and establishing himself in Paducah, Kentucky, and shortly thereafter he began operating a saloon in that town. Pie owned or at least possessed in Ireland, according to the laws of that country, a small farm on which he left his wife and three small children. In 1884 Mrs. Furey came to America to look for her husband and located him at Paducah. In a few months thereafter she sent for their children and they all took up their residence in Paducah. In the meantime Furey had acquired a house and lot on Trimbie
After his death his wife, Catherine, continued to operate the saloon until she, eight months , later, married Michael H. Gallagher, her present husband. She paid off the deferred payments due upon the house and lot deeded to her. She likewise paid off and discharged about fourteen hundred dollars of indebtedness contracted by her first husband, Charles Furey. Some months after Charles Furey’s death Catherine returned to Ireland to dispose of the farm and implements left behind, and found that the landlord had subjected it all to his claim for rents, and she at a public sale acquired the property and again sold it at the price of three hundred seventy dollars or three hundred eighty dollars, a part only of which she has been able to collect. She has occupied the house on Trimble street in Paducah as her home ever since 1886, and was so residing at the time of the institution of these actions, tier three children contend that the house and lot deeded to her in 1886 by Mrs. Cooke and others was paid for by her husband, their father, and that Catherine, through fraud, caused the deed to be made to her when it should have been made to her husband, Charles, and that Catherine therefore is
At the time of the death of their father, Charles Furey, the plaintiffs were infants of tender years, but at the time of the institution of these actions the youngest one was about thirty-five years of age, and the others were some years older. The statute of limitation did not begin to run against the infants until they attained their majority but then began to run. Under section 2519, Kentucky Statutes, one may commence an action to have relief from fraud or mistake at any time within ten years from its discovery or from the time when, by the exercise of reasonable diligence, the circumstances considered, it could have been discovered, but not afterwards.
Where the person entitled to institute an action is under disability at the time of the accrual of the cause of action he may institute it within the statutory period after he attains his majority as though the right of action first accrued to him upon his arrival at the age of twenty-one years. If the court were convinced from the evidence that Catherine Furey by fraud procured the deed to. be made to her instead of to her husband, as charged by the plaintiffs, it would now be too late for plaintiffs to institute this action. But we are of opinion that the property was deeded to Catherine as purchaser
In the other suit of the children against their mother 'a settlement of the accounts of Mrs. Gallagher as executrix of the estate of Charles Furey is sought to be had, and especially of the money received by her from the farm and implements in Ireland. For a full understanding of this branch of the action it is necessary to consider the terms of the will of Charles Furey. It is very brief and direct. It reads: “I give and bequeath to my beloved wife, Catherine Furey, all my property of which I am possessed, real, personal and mixed,” and then mentions specially the house and lot on Trimble street, and the farm and implements in Ireland, concluding the sentence with, “and in case the property depreciate in value my wife has the privilege to sell same to the best interest of all concerned.” The circuit court construed this writing to vest a life estate in Catherine, the mother, with remainder over to her children, the plaintiffs, reserving to Catherine the right to sell and dispose of the property in case it depreciated in value. This was as liberal to the plaintiffs as the langnage of the instrument would warrant, if indeed not too liberal. The next sentence in the will is as follows: “In case of my wife’s death the property i s to go to my children. ’ ’ This plainly indicates that plaintiffs’ remainder interest, whatever it may be, is not to vest or become effective until the death of Catherine. The trial court’s judgment with respect to the Trimble street property is acquiesced in by the plaintiffs, but they prosecute this appeal from that part of the judgment which does not require Catherine as executrix of the will, to settle her accounts, the largest item bc-ing the Ireland property. The evidence conclusively shows that Charles Furey did not own the little farm in Ireland in fee, but only under some system in vogue in
The judgment in appeal No. 31 is affirmed, and that part of the judgment in appeal No. 32, which construes the will of Charles Furey, is affirmed, but that part of the judgment which holds that the executrix is not required’to settle her accounts is reversed with directions to require the executrix to settle her accounts.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.