174 Ky. 398 | Ky. Ct. App. | 1917
Opinion of the Court by
Affirming.
Josiab. Shaw died, December 30th, 1913, a resident of Crawford county, Indiana, possessed of personal property amounting to a little more than $17,000.00, of real estate, located in Crawford county, Indiana, worth about $2,000.00, and of a large tract of land, containing about 1,200 acres, in Meade county, Kentucky, which
On the ninth day of July, 1914, Simon E. Crimes, as executor, and in his own right, Minnie M. Crimes, the daughter, and Carrie N. Shaw, the widow, filed this action, in the Meade circuit court, against Ava Loraine Shaw and Lyman P. Shaw, Jr., infants, to sell the Meade county land and divide the proceeds, after equalizing advancements, among the devisees of Josiah Shaw, alleging that the land could not be divided without materially impairing its value. The infant defendants were first constructively summoned by warning order, but were afterwards brought to Meade county by their mother, and regularly served with process, in that county, and, guardians ad litem having’ been appointed,' filed answers, which, however, do not controvert any of the allegations of the petition. The case was referred to the master commissioner to hear proof, and report claims against the estate of Josiah Shaw and the amounts of the advancements chargeable, under the will, to the plaintiff, Minnie M. Crimes, and the infant defendants. After hearing proof, the master commissioner filed his report. Depositions were taken on interrogatories, and cross-interrogatories filed by the guardians ad litem for the infant defendants, and exceptions were filed, by the guardians ad litem, to the master’s report upon the amount chargeable to the infants, and to the" allowance of a board bill filed by Simon E. Crimes and Minnie M. Crimes against the estate of Josiah Shaw. The board bill having been withdrawn, the guardians ad litem withdrew the exceptions they had filed to the report of the amount of advancements chargeable to the
This judgment is, manifestly, a final order, and appealable; but no appeal has ever been prosecuted from that judgment, which was entered on the 5th day of October, 1914, and it is not now before us.
Pursuant to that judgment, the land was sold by the master commissioner, and at the sale, Simon E. Grimes, executor of the estate of Josiah Sbaw, became the purchaser, at the price of $71,000.00; and the master’s report of sale was confirmed without exceptions, and no appeal has been prosecuted from that judgment. Thereafter, the plaintiff, Simon E. Grimes, and Minnie M. Grimes, his wife, filed an assignment from Carrie N. Shaw to them, of her interest in the purchase bonds, and asked credit upon the shle bonds of Simon E. Grimes, the purchaser, for the amount due thereon to Carrie N. Shaw, who had died, also a resident of Crawford county, Indiana, after the execution of the assignment. The guardians ad litem for the infant defendants filed exceptions to the assignment of Carrie N. Shaw, of her interest in the purchase bonds, asserting that it was void, upon the ground that Carrie N. Shaw, who was about eighty years of age when she executed the assignment, a few days before her death, without valuable consideration, and as a gift, did not have sufficient mind to execute the assignment, and further, that the assignment was procured by fraud and undue influence. Issue was joined upon the question of the validity of the assignment, between the guardians ad litem and Simon E. and Minnie M. Grimes, and this issue transferred to the ordinary docket, and a trial had thereon, by' a jury, which resulted in a verdict sustaining the validity of the assignment. Prom the judgment of the court upon that verdict this appeal is prosecuted by the guardians ad litem, and only that judgment is before us upon this appeal.
Counsel for appellants attempt, upon this appeal, to attack the judgment entered in this action, on October 5th, 1914, and the judgment confirming the sale; but, as • heretofore explained, those judgments are not here and cannot now be considered by us. As appellants are infants, they may yet prosecute an appeal from those judgments, if they so desire; but the right of the guardians ad litem to do so has expired, as the judgments were ’entered more than two years ago. See section 745 of the Civil Code of Practice; Reynolds v. Steele, 170 Ky. 153; and Park v. Barnes, 173 Ky. 589. If, however, those judgments are void, as is now urged upon us, before taking the appeal, the infants must, of course, make a motion in the lower court to have them set aside, as is provided in section 763 of the Civil Code of Practice.
"We come now to a consideration of the question, whether or not the guardians ad litem had the right, on behalf of the infant defendants, to question the validity of the assignment of Mrs. Carrie N. Shaw of her interest in the sale bonds for the Meade county land. This action was filed to determine the' interests of the devisees of Josiah Shaw, under his. will, in a tract of land in Meade county and, upon the ground that it was indivisible, to sell same and distribute the proceeds thereof
The matters involved in the action with reference to which they were authorized to act under their appointment were, the interests of the infants in the Meade county land, as devisees of Jtfsiah Shaw. When the court determined and adjudged those interests, and directed a sale of the land and a distribution of the proceeds according to the interests as fixed in the judgment, the matters therein involved were finally determined, and the duties of the guardians ad litem terminated, Subject to their rights to appeal on behalf of the infants from those judgments, within the time allowed to them by law. Their appointment as guardians ad litem to represent the infants, as devisees of Josiah Shaw, in an action to determine their rights, under his will, to his lands, gave them no right or power to represent the infants, as heirs or devisees of Carrie N. Shaw, in the distribution or preservation of her estate. Unless the judgment of the lower court, fixing the interests of Carrie N. Shaw in the Meade county land and adjudging to her a definite amount of the proceeds of such sale, is set aside or modified, that judgment vested in Carrie N. Shaw the title to so much of the purchase money as was adjudged to her, which was personal property, and not real estate; and that judgment, so long as it stands undis
■Wherefore, the appeal is dismissed.