93 Ky. 349 | Ky. Ct. App. | 1892
DELIVERED THE OPIHION OF THE COURT.
John Gay, Jr., died intestate, leaving several children, some of whom were infants, and an estate consisting of land and personalty, but not enough of the latter to pay debts, and consequently the Louisville Safety Vault and Trust Company, a corporation, having been appointed administrator, brought this action for settlement of its accounts and for sale of real property sufficient to pay debts.
During pendency of the action the City of Louisville filed under order of court tax-bills of unpaid municipal taxes for several years; and, without having been passed on and reported favorably by the master commissioner, or proved in any way, the lower court adjudged the amount of such taxes for the years 1883 to 1887, inclusive, be paid out of proceeds of land belonging to decedent’s estate that had been sold under previous judgment.
Section 773, title 19, Louisville Chancery Court, Civil Code, provides that court “ may, in actions for the sale of real property, determine summarily, with or without written pleadings, the amount of any State or munici
Even if it be conceded that section was intended to apply to actions for settlement of estates of deceased persons provided for by chapter 3, title 10, which is by no means clear, still, giving to the section a fair and reasonable construction, we are satisfied no more discretion was intended to be given to the chancellor than simply to decide upon validity of tax-bills, and the question of lien on property sought to be sold, without written pleadings. For it would be without power of the Legislature to authorize a court to adjudge a tax-bill, in favor of either the State or City of Louisville, to be valid and enforceable against the estate of a deceased person without satisfactory evidence of it being a valid and unpaid demand, or at least when it did not so appear prima facie.
Sections 35 to 39, inclusive, of article 2, chapter 39, General Statutes, in express terms provide that all demands against the estate of a decedent shall be verified by the written affidavit of the claimant, stating that the demand is just and has never, to his knowledge or belief, been paid, and that there is no offset or discount- against the same or any usury therein. And it is in terms too plain to be misunderstood, or disregarded by courts of justice, further provided, that “no demand against a decedent’s estate shall be paid by his personal representative, or allowed as a credit by any commissioner or court, which is not verified by affidavit as required herein.”
It has been sometimes held that unpaid taxes can not
It is, however, contended that as no exception to the filing, or objection to payment of the tax-bills, was made in the court below, the judgment must be treated as consented to and, therefore, can not be disturbed by this court. That position would be correct if it was not for the fact, some of the heirs at law of the decedent Gay were infants who could not, in legal contemplation, consent- to any actual or seeming violation or disregard of their rights of property.
When an action has been commenced by a personal