I think the evidence establishes an adverse holding upon the part of appellee for more than the statutory period of limitation and concur in the conclusions upholding its title to the land in controversy. This is predicated on the facts that when James H. Hargis conveyed the fee in the land to the St. Helen's Land, Coal Iron Company on May 7, 1887, by deed in which the will of *Page 453 Amanda Hargis was referred to as the source of title and placed his grantee in possession, both parties to that deed asserted a title and possession adverse to that of the remainderman, and thereby the statute of limitation was started against them. But I cannot agree with that part of the opinion which holds that the mere probate and recordation of the will of Amanda Hargis, together with the occupancy of the land by James H. Hargis is in itself sufficient evidence to establish an adverse holding upon the part of James Hargis. I fear the view thus expressed in the majority opinion may produce confusion in our decisions and for that reason feel impelled to dissent from such holding. It is a well-established rule that the possession of a life tenant is amicable to the remainderman. Fish v. Fish, 184, Ky. 700, 212 S.W. 586; Shutt's Admr. v. Shutt's Admr., 192 Ky. 98,232 S.W. 405; Carpenter v. Moorelock, 151 Ky. 506,152 S.W. 575. And this cannot become adverse to the remainderman during the life of the life tenant unless he brings home to the remaindermen by clear and convincing evidence notice of his intention to claim the fee. Bates v. Adams, 182 Ky. 100,206 S.W. 163; Phillips v. Williamson, 184 Ky. 396, 212 S.W. 121; Russell v. Tipton, 193 Ky. 305, 235 S.W. 763. It is true that the probate and recordation of the will of Amanda Hargis in which she undertook to devise the land in fee to her husband created a cloud upon the title of the children (remaindermen) and no doubt they could have filed suit to have it declared void. However, being void it could not improve with time, and the children could safely ignore its recordation until such time as title was asserted under it. Even if the husband and father, James H. Hargis relied on the will, unless he was also actually claiming and holding the property by adverse possession, such color of title would be of no avail. Hence, I can see no force in the suggestion that the rights of the remaindermen were affected by the acts of their mother in the execution of the will, nor do I think the facts sufficient to show that James Hargis was so claiming and holding possession. It is true that he was named as devisee in a void will, but he was also the rightful tenant by curtesy in his wife's lands. In view of this situation the probate of the will might imply an intention to claim thereunder, and if he had made any assertion or declaration of a claim to the fee or acted in such a manner as to clearly show that he was so claiming, the conclusion of an adverse holding ought to be reached. This however was not the case and in view of the fact that he had a *Page 454 life estate and a legal right to the occupancy of the land as tenant of the curtesy, but no right to the fee; and in the absence of any such suggestions as above made, I do not see how it can be said that the evidence of notice to the children that he was claiming adversely to them is clear and convincing. True, as argued by appellee the remaindermen might have brought suit to remove the cloud from their title by declaring the will void, but unless and until they were notified that James H. Hargis was claiming adversely to them by reason of the will, there was no necessity for them to do this. For illustration: Suppose that at the expiration of more than fifteen years from the probate of the will James H. Hargis had brought suit to quiet his title, alleging that he had acquired title by adverse possession under the color of title, and that the children were asserting title in the remainder. Can it be thought for a moment that any court would hold that the facts above stated constitute clear and convincing evidence that he was claiming the ownership of the land in fee and had brought notice of this claim to the remaindermen? Certainly not, and if not, the same rule must apply in this case. Lack of time prevents me from referring specifically to the imposing number of cases cited in the majority opinion, but when analyzed I believe that not a single one will be found to conflict with the views herein expressed.

Judge Dietzman authorizes me to say that he concurs in this opinion.