183 Ky. 233 | Ky. Ct. App. | 1919
Opinion op the Court bt
Reversing.
W. L. Bennett died January 3, 1908, in Crittenden county, intestate, survived by bis wife, Julia E. Bennett, and three children, Carrie Prances Bennett, Henry Walton Bennett, and Emma Crystal Bennett, all of whom are infants under twenty-one years of age. The widow, in 1915, married J. E. Emery. W. L. Bennett owned at the time of his death three lots in the town of Dycusburg, and a two hundred acre tract of land on the waters, of Livingston creek and the Cumberland river, one hundred acres of which, including the improvements, was shortly after his death, allotted to his widow as dower. Shortly after W. L. Bennett’s death the widow, by an order of the Crittenden county court, was appointed and duly qualified as the statutory guardian of each of the three infant children above named, in which capacity she is still acting. About the same time one H. A. Haynes, by an order of the Crittenden county court, was appointed and duly qualified as the administrator of W. L. Bennett’s estate.
W. L. Bennett left a small personal estate, which went into the hands of the administrator following his appointment. As there .were some debts owing by the estate and the personal property was insufficient to pay them, the administrator brought an action in the Crittenden circuit court under ■ sections 428-489, Civil Code, to obtain a sale of the real estate left by the- decedent, or enough thereof to pay the debts and also for a settlement of the estate, the widow and children being joined as defendants, the former in her capacity, of widow and as statutory guardian for the children. The cause was referred to the master commissioner to report the assets and liabilities of the estate, and he later filed a report which showed the indebtedness to be $611.14, and that the cost of sale and effecting the settlement would prob
It does not appear from the record that the report was excepted to or confirmed; but following the filing of same the court entered judgment declaring necessary a sale of the real estate for the payment of the decedent’s debts, and costs of the action, and directing a sale of a sufficiency of the real estate for that purpose, the whole of which is accurately described in the judgment, which excluded from the sale the one hundred acres of land previously allotted the widow as dower. The judgment, however, does not state the amount of the debts, but does recite that there shall be included in the costs of the action and paid out of the proceeds of sale, $100.00, allowed as a fee to the attorney of the administrator.
Acting under the authority conferred by this judgment the master commissioner advertised and sold at public outcry the whole of the real estate left by the decedent, except the widow’s dower. The town lots were sold first and brought in' the aggregate $365.00. The land, exclusive of the dower, was then sold in gross, bringing $1,035.00, the appellee, Henry Owen, being the purchaser. The sale was reported to and confirmed by the court, and by the court’s order a deed was made through the master commissioner conveying the land to the appellee Owens, purchaser, who thereafter sold and, by deed, conveyed it to the appellee, William Grriffin, who is now in possession of it. It will be seen from what has been said that the land purchased by Owen at the decretal sale and for which he paid only $1,035.00, contains 118 acres of fertile bottom land; and further, that although there were but $611.14 of debts owing by the estate and $175.00 costs, making a total indebtedness of $786.14, there was realized from the sale of the real estate $1,400.00, or $613.86 more money than necessary to pay the reported debts. Looked at from another angle, we find that upon crediting the indebtedness of the estate, $786.14, by the $365.00, realized from the sale of the town lots, there was but $421.14 of indebtedness left; yet for this there was sold a tract of 118 acres for $1,035.00, which was $613.86 in excess of the amount required to complete the payment of the debts.
The infant appellants, children and heirs at law of W. L. Bennett, deceased, suing in their own right, by their statutory guardian and also a next friend, brought
Appellees filed a general demurrer to the petition which the circuit court sustained. Appellants then tendered and offered to file an amended petition which the court refused to permit to be filed. Appellants excepted to the court’s ruling in sustaining the demurrer to the petition and rejecting their amended petition; and refusing to- plead further, their petition was dismissed. From the judgment manifesting these rulings this appeal is prosecuted. The amended petition, not permitted to be filed, was by proper order made a part of the record for the purpose of appeal.
The facts alleged in the petition being admitted by the demurrer must be taken as true; it is only our duty therefore to determine whether the petition states a cause of action. For very sufficient .reasons the judgment in the action brought by the administrator and sale thereunder must be held void. According to the averments of the petition, which are admitted by the demurrer, the judgment does not show the indebtedness of the estate nor declare the real estate indivisible, and no order was ever entered in the case confirming the commissioner’s report showing the indebtedness. In addition, the judg
As the question is not before us, we do not now pass upon the equities that may arise in behalf of appellees, if upon the final hearing the circuit court should adjudge appellants entitled to the land. In that event, as appel
Eor the reasons indicated the judgment is reversed and cause remanded with instructions to the lower court to overrule the demurrer to the petition and for further proceedings consistent with the opinion.