89 Ky. 442 | Ky. Ct. App. | 1890
dkmvbkbd the opiotoii <m the codbt..
By his will, dated February 12, 1885, and proved and admitted to record February 23, 1885, Michael A. Myers devised to his wife, Ann J. Myers, for life, remainder to his daughter, Hattie E. Myers, all his estate, consisting of a small amount of personalty, since consumed, and a house and lot, the subject of controversy. June .8,' 1888, J. H. Power was appointed administrator of the estate of the testator, the widow having died in May, 1888, and June 11, 1888, instituted this action for a sale of the house and lot, and application of the proceeds to payment of creditors, whose debts, as alleged in the petition, amount to about four hundred and fifty dollars, and the cost of administration and •of the action. Hattie E. Myers, who is an infant, by
The court,, however, sustained a general demurrer filed "by the administrator to the answer, which had been made a counter-claim,' and, in pursuance of the judgment,.rendered,, the house and lot were sold by a commissioner, bringing at the sale five hundred' and five dollars; wliich Will, unless'' this -court'intervenes, be paid out according1, to’thfe práyer'of1 the administrator, excluding the infant' as well-from what is claimed for her in'virtue of the statute as under the will of her father.
Section IB, article 13, chapter 38, General Statutes,, in expfe'ss terms provides the homestead exemption in favor of an '.execution'debtor,, or. one against whom judgment has-been, rendered,'shall continue after.his death for" the benefit, of his widow and children, subject, however, -.to be estimated in allotting dower; and, of course, the reason ,of the law requires, and, consequently, we must presume the Legislature intended; such exemption should exist, and be continued' as to'claims of creditors proved in an action for the' settlement of estates of deceased persons under provisions of the Civil Code.' ‘
By a fair construction of that section, tlie widow and children can not be disturbed in possession of the homestead while the widow lives, nor, in case of her death or abandonment, can the children be deprived of the possession and enjoyment of it before they arrive at full age; and in case of a sale of the homestead, the widow, and in case of her death or abandonment, the infant children, are entitled to the use ■of the proceeds; for not only is it in terms provided that the termination of the widow’s occupancy shall not affect the right of the children, but this court, in the, cases of Eustache v. Rodaquest, 11 Bush, 46, and Little’s Guardian v. Woodward, 14 Bush, 585, has decided that the children, when there is no widow, would be entitled to the exemption. Such being the condition and relative rights of the widow and children when the owner of a homestead dies intestate, we are. at a loss to see how the failure of the widow to exercise an election not to take under a null of such owner could prejudice his infant children; and, consequently, it seems to us the case .of Watson v. Christian, 12 Bush, 524, has no application, for there it was .simply decided the widow, who had not elected to
It has been decided by this court, more than once, that the owner of a homestead has power, under the statute., to convey, by deed, and pass a good title to the property, not exceeding one thousand dollars in value, the reason being that such conveyance does not affect rights of creditors. (Brooks v. Collins, 11 Bush, 622; Richart v. Utterback, 10 Ky. Law Rep., 548.)
In the last named case, the debtor conveyed the homestead to his children, in consideration of love and affection, and a continuance by them of kindly service and attention during the remainder of his life; but the use and occupation thereof was, by the terms of the deed, reserved by the grantor during his life. Although the effect of that conveyance was to postpone the use and enjoyment of the property by the grantees until after death of the grantor, and to pass to them only an interest in remainder, nevertheless it was held, that as the owner of the homestead had the right to convey the whole estate, there was no reason for denying him the right to convey less than the whole, for, in neither case, were creditors thereby prejudiced.
In our opinion, Hattie E. Myers was, under the will of her father, entitled to the interest in remainder of the house and lot; and it having been sold, and her mother being dead, she is now entitled to the whole amount for which it was sold.
Wherefore, the judgment is reversed, and cause remanded for further proceedings consistent with this opinion.