180 Ky. 580 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming.
Charles H. Julian, who was domiciled in Franklin county, at the time, died, intestate, several years ago, and left surviving him an only heir, Alexander Julian, Jr., and his widow, now Mrs. J. D. Stewart. Clarence Julian, qualified as administrator of the decedent, and, also, as the statutory guardian of the infant heir, Alexander Julian, Jr. The personal property of the decedent’s estate was sold by the administrator and the proceeds appropriated to paying the debts of the estate, but the proceeds were insufficient for such purpose, in the sum of about five thousand dollars. Among the other
This action was instituted by Clarance Julian, suing both as administrator of the decedent and guardian of the infant, and the object sought was a final settlement of his accounts, as administrator, and the sale of a tract of land, which contained one hundred and seventeen acres, and application of the proceeds of the sale to the payment of the remaining indebtedness of the estate, and the excess,- after the payment of the debts, to the maintenance and education of the infant. The defendants in the. original petition were the infant, Alexander Julian, Jr., the surviving widow of decedent, and certain of the creditors, but thereafter several amendments to the petition were made, and a reference of the cause to a commissioner to receive, hear and report claims against the estate, and either by the amendments to the petition or the appearance of the creditors before the commissioner, all the creditors became parties to the action before the rendition of the judgment under which the land was finally sold. The petition and its amendments, together, contained all the averments necessary in an action for the settlement of the decedent’s estate and a sale of the lands belonging to it for the payment of its indebtedness, as required by section 429, Civil Code. With reference to the action of the guardian against the ward for the sale of such portion of the land as was not necessary to be sold for the payment of the debts, which action was joined to that for the settlement of the estate, it was alleged that the income of the estate of the infant was insufficient to maintain and educate him and that his mother was not financially able to maintain and have him properly educated, and that it was proposed to use the remaining portion of the proceeds of the sale of the lands, after the payment of the debts of the estate, in the education and maintenance of the infant, and that there was no other way to enable him to be educated, other than by the use of such pro
Before judgment, the bond provided for by section 493, Civil Code, was duly executed by the guardian to the infant and recorded with the judgment. The land was adjudged to be sold according to the prayer of the petition, when the appellant, J. B. Carpenter, became the purchaser," at the sum of $11,785.00, but. fearing, that he would not receive a good title, he declined to execute the sale bonds and filed exceptions to the report of sale, as well as a response to the rule against him, which required him to show cause for declining to comply with the contract of sale and execute the bonds for the purchase price-. The response to the rule was held insufficient and he was ordered to execute the bonds, the exceptions were overruled and the sale confirmed, and from this judgment he has appealed.
The grounds relied upon for reversal are three:
First. The bond provided for by section 410, Civil Code, was not executed before judgment.
Second. The pleadings nor evidence were sufficient to justify a sale of an infant’s real estate for his maintenance and education.
(a) As to the first ground of exception to the sale, it is urged by appellees, that the infant being over fourteen years of age and a copy of the petition and summons having been served upon him, as provided for by section 56, Civil Code, that such service dispenses with the necessity of executing the bond provided for by section 410, Civil Code, before the rendition of the judgment. If such service had been made, the contention would be, doubtless, true. Young v. Bullen, 19 R. 1561. The record, however, fails to show, that any such service was ever had upon the infant defendant, and the only service shown was the constructive service, by the making of a warning order and the appointment of an attorney for him, as provided by section 57, Civil Code.
It will be observed,, that the application of section 493, Civil Code, which requires a bond by the guardian to his ward before a sale is ordered of the real estate of the ward, is specially excepted from a sale of infant’s real estate for the payment of the debt of his ancestor or his own debt. Section 489, subsections 1 and 2, Civil Code. If, however, a sale of an infant’s real estate is made for the satisfaction of the debts of Ms ancestor and it is necessary to sell more land in the protection of the infant’s interest than is necessary to 'pay the ancestor’s debts and the costs, on account of indivisibility of the lands, sections 493 and 497, Civil Code, apply to the excess, and the bond required by section 493, supra, must be executed before judgment and recorded with the judgment, or else the purchase price, for the excess sold, must not be paid, but must remain a lien upon the land until the infant arrives at his majority or until the bond, as provided by section 497, supra, is executed. Oldham v. McElroy, 134 Ky. 454; Foley v. Graham, 33 R. 627; Carter v. Crow’s Admr., 130 Ky. 41; Elliott v. Fowler’s Guardian, 112 Ky. 376; Louisville Banking Co. v. Pranger, 24 R. 408. Hence, the bond provided for by section 493, supra, was properly executed, by the guardian to his ward, touching the excess of land sold, over what was necessary to satisfy the debts of the ward’s ancestor, but it is not applicable to the proceeds of the portion of the land necessary to be sold to pay the ancestor’s debts. In Morrison v.
(b.) Neither does the second ground of exception seem to be well taken. It is true that under sections 2034, subsections 1 and 2, Kentucky Statutes, a guardian is confined in his disbursements for the maintenance and education of his ward to the income of the ward’s estate, except where the ward is of such tender years or of infirm health, that he can not be bound out as an apprentice, or no suitable person will take him as such, or when it is necessary to make a judicious application of the principal, or some of it, in the payment of the board and tuition of an infant, and where these exceptions occur, the guardian may encroach upon the principal of the personal estate, and if properly and judiciously spent to the best interest of the ward, the expenditure will be approved, but the ward’s real estate can not be used for such purpose without an application has been first made to a court of equity and a clear case shown of the necessity for it, when the court may direct a sale of the ward’s real estate and the use of the proceeds in his education, as provided by section 2039, Kentucky Statutes. Dixon v. Hosick, 101 Ky. 231; Overfield v. Overfield, 17 R. 313; Cox v. Stort, 14 Bush 502; Fidelity Trust Co. v. Butler, 101 Ky. 231; Nun
(c.) With respect to the third ground of exception to the sale, the certified records of the county court, on file in the action, seem to be sufficient evidence, for the purposes of this action, of the appointment and qualification of the .plaintiff as administrator of decedent and as guardian of the ward.
It appearing that there is no sufficient reason shown why the purchaser will not obtain a good title to the land, when the purchase price shall have been paid and the deed executed, it is therefore ordered that the judgment be affirmed.