Hughart v. Spratt, &C.
| Decision Date | 30 January 1880 |
| Citation | 78 Ky. 313 |
| Court | Kentucky Court of Appeals |
| Parties | Hughart v. Spratt, &c. |
APPEAL FROM BATH COURT OF COMMON PLEAS.
WM. LINDSAY FOR APPELLANT.
R. GUDGELL & SON FOR APPELLANT.
REID & STONE FOR APPELLEES.
CHIEF JUSTICE PRYOR DELIVERED THE OPINION OF THE COURT.
In the year 1854 Jacob Henry, a resident of the county of Bath, died, leaving surviving him his widow and two children, to whom he devised a part of his estate. He had been previously married, and had other children, whose interests are not affected by this litigation. He left a last will, by which he devised to his widow "the use and profit of the balance of my lands and negroes, except as hereinafter provided, during her natural life, for the purpose of her support and education of her two children, Jacob and Eliza, &c., . . . . . . and, after her death, to Jacob and Eliza, in fee; and for the purpose of aiding her in the support of herself and those children named, I also give and bequeath to my said wife my household and kitchen furniture, four workhorses, wagon, gear, farming utensils, &c. . . . . . In case my wife should marry, then the land shall be divided into three equal parts, one of which, including the dwelling house, shall be for the use of my wife as above, the other two allotted to her two children, Jacob and Eliza, or, when Jacob arrives at maturity or either of the children marry and desire a division, in that case, a division into three parts, as above intended, shall be made; but my wish and request is that it may remain undivided, and my wife and children live together as long as may be."
The widow married William Sharpe in the year 1857, and he died in October, 1864. There was no division of the land at or during her marriage with Sharpe, but a partition was made in the year 1869. The quantity allotted the widow and her two children was 88 acres each. In the year 1865, after the death of Sharpe, the second husband, the widow, with a view of recovering from Sharpe's estate moneys alleged to be due her daughter Eliza, qualified as her guardian, with the present appellant and her son, Jacob Henry, as her sureties on the guardian's bond. She collected $1,615 for her ward from this estate. Her daughter lived with her on the land devised until her marriage with Spratt, in the year 1875. She made two settlements in the county court of her accounts as guardian, one in the year 1872 and the other in the year 1875, and, by the last settlement, is shown to be indebted to her daughter in a large sum — say $3,336. In the meantime the mother, who was guardian, and her son, one of the sureties, became insolvent, and Spratt and wife are attempting, in this proceeding, to coerce payment of the appellant, the solvent surety.
The surety alleges in his answer a failure on the part of the guardian to apply for or ask the credits to which she was entitled as against her daughter, and that this refusal or failure on her part resulted from a desire to enlarge her liability, that it might be collected from him. The surety claims that the ward should be charged with her board and clothing furnished by the mother, if the latter is held accountable for the rents, and gives in detail many other items with which he says the guardian should have been credited.
We concur with the learned chancellor that the equities of the surety in this case are purely derivative; and if, as between the guardian and Mrs. Spratt, her ward, the credits would not be allowed the guardian, they must be denied the surety. He can make the same defenses and no other, as this case is presented, that the mother could, if she, and not the surety, was contesting the right of recovery.
The only real estate the guardian owned was the dower in the estates of her deceased husbands — eighty-eight acres in her first husband's lands, and about fifty acres in the lands of Sharpe. She had purchased the interest of her son; but this was on a credit, and seems never to have been paid. Now, in a controversy between the mother and daughter, in regard to the rents of the daughter's land, worth some $250 per annum,...
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