116 Ky. 862 | Ky. Ct. App. | 1903
Lead Opinion
Opinion on the cotjbt bt
Reversing.
Joe Weisiger died in Garrard county, this State, December, 1893, intestate, but was survived by his wife, Mary Kinnaird Weisiger, and an infant daughter, Lucile Weisiger. His widow afterwards intermarried with one-McDonald, with whom she is still living, their place of residence being in Boyle county. Soon after the death of the intestate, his brother, John G. Weisiger, was, by an order of the Garrard County Court, appointed, and at once gave bond and duly qualified, as the statutory guardian of the infant, Lucile Weisiger, who was then under fourteen years of age. Subsequently, Lucile Weisiger, while yet an infant, died in Garrard county, intestate, unmarried, and without issue; and thereafter W. H. Kinnaird, by an order of tbe Garrard County Courf,
After the death of Joe Weisiger, and before the death of his infant daughter, her statutory guardian, John G. Weisiger, instituted an action in the Garrard Circuit Court in which she, her mother, W. H. Kinnaird, administrator of the estate of Joe Weisiger, deceased, and J. E. Stormes, joint owner of a part of the real estate mentioned, were made defendants, the objects of the action being to obtain a. decree for the sale of all the real estate and interest therein owned by Joe Weisiger at the time of his death. It was averred, in substance, in the petition in that case that the lots could not be divided without materially impairing their value, and that it would be impossible, in view of their char
After all the parties to the action were brought before the court a decree was entered by the chancellor directing the sale in one body of the residence lot on Lexington street, on the, usual terms, and after the customary advertisement. The decree further directed that one half the proceeds realized from the sale of the residence lot be paid to the widow, and that she also be paid the money value of her dower out of the other half, and that the remainder, which would be going to the infant, should not be paid by the purchaser, but remain a lien on the realty until she became twenty-one years of age, or until the execution by her guardian of the proper bond, as required by section 493, Civil Code Practice. The decree further directed that the residue of the realty be'not sold until ordered by the court.
At the succeeding term of the court a further decree was entered, wherein it was adjudged that the residue of the realty be sold, for the reason that it could not be divided without materially impairing its value and the value of each share, and that the best interest of the infant required that it be sold for a reinvestment of her share of the proceeds as provided by law.
The appellee filed a demurrer to the petition, which was
Section 1401, Kentucky Statutes, 1899, provides that “if an infant dies without issue, having the title to real estate derived by gift, devise or descent from one of his parents, the whole shall descend to that parent and his or her kindred as hereinbefore directed, if there is any; and if none, then in like manner to the other parent and his or her kindred; but the kindred of one shall not be so excluded by the kindred of the other parent, if the latter is more remote than the grandfather, grandmother, uncles and aunts, of the intestate and their descendants.”
It is conceded by the appellees that if the real estate that descended to the infant, Lucile Weisiger, upon the death of her father, had remained unsold, it would, under the statute, supra, have gone at her death to the appellants; but they contend that inasmuch as it was converted into money before her death, it became and must be treated as personalty, and that as subsection 1 of section 1403, Kentucky Statutes, 1899, directs that “the personal estate of an infant shall be distributed as if he had died after full age,” the same went to the mother at the death of the infant, and is consequently rightfully held by her.
In construing section 1401 of the statute, supra, this court, in Talbot v. Talbot, 17 B. Mon., 1, held that “the purpose of the Legislature (in enacting it) was to limit the descent' of the real estate of an infant dying without issue to that side of the house from which it came;” and in Powers v. Dougherty, 83 Ky., 187, 7 R., 54, it was also held that “if an infant dies without issue, having title to real estate derived from one of his parents, the whole descends to the kindred of that parent, provided such kindred are not more remote than the grandparents, uncles, and aunts
Subsection 6, section 494, chapter 14, Civil Code Practice, relating to'the sale of the real estate of persons.under disability, expressly provides that “if the owner of real estate which has been sold under the provisions of this chapter die during infancy, or being of unsound mind die intestate, or being an adult married woman die without having received the proceeds of sale, upon her written request, and upon privy examination as is authorized by this chapter, or without disposing in the manner authorized by law of the property in which the proceeds may have been invested, the person who would have been entitled to the property if it had not been sold, shall be entitled to the proceeds, or to the property in which they have been invested.” This provision of the Code is, in our opinion, conclusive of the question in issue in the case at bar. The real estate of the infant was sold under chapter 14, Civil Code Practice, according to the terms of the judgment, for a reinvestment of the proceeds for the infant’s benefit; but before the reinvestment was made the infant died. In contemplation of law the proceeds of her real estate were still under the control of the chancellor at the time of her death, though in the hands of her guardian, and under the provision of the Code, supra, they must go to the appellants, as they are the persons who would have been entitled to the property if it had not been sold. In Pomeroy’s Equity Jurisprudence, sec. 1167 (2d Ed.), under the head “Compulsory Sales of Land under Statute, or by Order of Court,” it is said: “Where land is purchased or taken under compulsory powers conferred by statute, and the owner is sui juris, a con
Rehearing
Response to petition for rehearing by
The question is made by the petition for rehearing that W. H. Kinnaird, administrator of Lucile Weisiger, deceased, is not a party to this appeal. We find on page 30 of the record an order which dismissed; him as a party to the action, and this order was, of course, entered by the lower court before the appeal was taken. We were led to think him a party to the appeal, as his name appears as a party in the statement filed with the record naming the parties to the appeal. It is, however, not material to the decision of the appeal by this court that he should have been a party to the record. Appellants, upon the ground that Mary A. McDonald had illegally received and converted the proceeds of her infant daughter’s real estate to which they were entitled, no matter by whom paid to her, had the right to sue her alone to recover it, or to dismiss others whom they had sued with her, and seek á recovery against her alone. The judgment and opinion of this court can not
A careful examination of the petition for rehearing has failed to indicate to our minds any error in the conclusions expressed in the opinion herein, wherefore the opinion is modified to the extent of declaring that it does not apply to Kinnaird, and the petition for rehearing is overruled.