117 Ky. 877 | Ky. Ct. App. | 1904
Opinion or the court by
Affirming.
T. J. West died in Marion county, Ky., in the year 1805, and left a small amount of personal property and three tracts of land. On one of the tracts there was a lien in favor
He alleged in his petition that these were all the creditors of the decedent known to him. He also alleged that the decedent was the statutory guardian of his children, and as such was indebted to them, as shown by his fast settlement, which settlement was made part of his petition, in the sum of $973, with interest from the year 1890. It also appears that J. M. Knott some time in the month of February, 1896, was appointed by the county court as guardian for the children of the decedtent, West, who were made defendants in the action. But before he was summoned and made a party to the action as guardian, and on the 21st of February, 1896, the court rendered a judgment for the sale of the three tracts of land mentioned. The-court first directed the commissioner to offer the three tracts separately and then as a whole, accepting the bid or bids which result in the most
The appellant claims that Mrs. Rosetta Johnson is not bound by the judgment in the Parrott suit, for the reason that she was not a party thereto. He also contends, even admitting that Parrott and all the parties to that action, other than Knott and Mackin had no notice of the existence of the claim of Rosetta Johnson, yet as it was shown by the proof that T. J. West in his lifetime, knew Mrs. -Johnson held his note, and as these children and their guardian claimed through and under him, they wefie bound by his knowledge of the assignment to Mrs. Johnson, even if no one of them had been informed of it after his death. This last proposition is true, provided they had received the sum paid them as heirs, legatees, or devisees. But, as they received it as preferred creditors of the estate, these principles can not apply to them in this
It is apparent from all these code provisions, taken together, that, if an estate of a decedent be settled, and these-provisions be substantially complied with, then the judgment of distribution should be final and binding upon all creditors,, whether they had actual notice of the pendency of the action or not. And if a -creditor did not appear in such- an action,, and file his claim, or move to-, set aside, vacate, or modify the-judgment of the court as prescribed by section 518 of the Civil Code of Practice, then his claim is lost unless he can recover it against the legatees or distributees as provided by section 434, Id. As to the executor, administrator, and creditors who file their claims, the advertisement in the newspaper, or by such other meansi or modes) as the court may order, must be conclusively presumed to have notified all creditors of the pendency of the action; for it is provided by section 433 of the Civil Code of Practice that' creditors failing to appear and prove their claims shall have no claim against the executor or administrator who has actually paid out the estate in expenses- of administration and to creditors,, legatees, or distributees. The .next section expressly limits the right of creditors who file their claims to a recovery from the legatees- and distributees of the estate, thereby impliedly relieving ijhe creditors who have by order of the court received the amount of their claims from the contribution to those who may have failed to file claims. ,
For these reasons the judgment of the lower court is affirmed.