92 Ky. 386 | Ky. Ct. App. | 1891
delivered the opinion op the court.
The appellants sued the appellee, B. W. Wills, on some promissory notes executed by him to them and sought to subject his curtesy in his deceased wife’s lands to the payment of said indebtedness, and in case that could not be done they sought to subject to the payment of said indebtedness the sum of money which, as they allege, his said wife had bequeathed her two children, her devisees under her will, to pay him annually for a support. Said two children, Gr. L. Wills and Mattie J. Azbell, by their petition, were made defendants to said action, and their petition was made an answer thereto and by which they put in issue the allegations that B. W. Wills owned a life estate in his deceased wife’s land, alleging that she was empowered to act as a feme sole and to dispose of her entire estate by will, which she did dispose of by will to said children to the exclusion of her husband, B. W. Wills, and willed that said children should support, clothe and furnish him a home during his life in lieu of any interest in her estate. The specific allegations relative to Mrs. Wills being empowered to act as a feme sole and to dispose of her property by will are to be found in the rejoinder and are as follows: “ Say that the plaintiffs
By section 6 of article 2, chapter 52, of the General Statutes, it is provided that on the petition of husband and wife, or on the petition of the wife, the husband being made a party thereto, the circuit court of the county of the wife’s residence may, on satisfactory evidence, empower the wife to act as feme sole, and, among other powers conferred upon her, may empower her to dispose of her property by.deed or will. The seventh section of said article provides that the court shall have no jurisdiction to render such judgment until notice of the filing of the petition shall be published at least ten days, &c.
The power conferred upon Mrs. Wills by that judgment, if a valid judgment, had the effect to remove the disability of coverture in respect to disposing of her real estate by will and to deprive her husband of any interest therein that the law would have otherwise given him at her death, had she not disposed of the same by will. But it is said such power should not be so construed as to deprive the husband of his right to curtesy in his wife’s land so far, at least, as creditors are concerned, as that would be a fraud upon them. But why would the exercise of such power be any more a fraud upon them than the sale or gift of the land by the husband and wife ? If the wife
But it is said that as the court had no “jurisdiction to render such judgment ” until the notice required by the seventh section of said chapter was given, and as it .is not alleged that such notice was given, it is not shown that Mrs. Wills had the power to make the will, and that B. W. Wills was'not deprived of curtesy in the land unless it affirmatively appeared that the court had jurisdiction to render sai'd judgment.
The rejoinder is- silent on the subject of notice and the judgment referred to is not in the record. So the question is, should it be presumed, in this collateral proceeding, that. said notice was given ? It is said not, because it required a special notice to be given in order to give the
Section 122, Civil Code, makes no distinction. Its language is broad and comprehensive and to the effect that it is not necessary in pleading a judgment of a court, etc., to state the facts conferring jurisdiction, but it shall be sufficient to state that the judgment was duly given, etc. The language of the Code comprehends all judgments of superior courts whether the facts necessary to give such courts jurisdiction are special or general. It is presumed that the codifiers had in view the general rule upon this subject, and their language conforms to that-rule, which is, that the presumption ought to be indulged in as a matter of necessity in all cases of superior courts even though the existence of special facts are necessary to give the court jurisdiction. ,
Take the case of the circuit courts of the United States, whose jurisdiction is for the greater part confined to eases where the plaintiff or defendant is an alien or a citizen of another State, and unless that jurisdictional fact appears in the judgments of these courts they might be reversed by the court above; but it would not be con
The next question is, should the devisees be compelled to pay the appellants a sum equivalent to the annual support of B. W. Wills, which support the will directs them to furnish him and which has not become an estate in his ■own right ? The will upon that subject provides as follows : * * * “It is my desire that he (B. W. Wills) shall not receive any life estate in my lands or interest in my personal property, and in lieu of said curtesy and personal estate I desire that my said children give to my said husband each year a sum sufficient to support him in a comfortable- manner and furnish to him a comfortable home and maintenance until his death, and should either of my said children at any time refuse to- so support and maintain my said husband then this will and its devises to become void and the property herein devised be dis
The judgment is affirmed.