Short v. Galway, &C.
| Decision Date | 07 January 1886 |
| Citation | 83 Ky. 501 |
| Parties | Short v. Galway, &c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM KENTON CHANCERY COURT.
M. J. DUDLEY FOR APPELLANT.
W. H. MACKOY FOR APPELLEE.
JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.
Mary V. Mitchell, the widow of William C. Mitchell, after his death married one Galway, and the two, husband and wife, instituted the present action in the court below against the appellant, Charles W. Short, who was the sole heir-at-law of William C. Mitchell, the first husband. Her marriage with Mitchell took place in the city of Cincinnati in July, 1873, and at the time of her husband's death they were residents of and domiciled in the State of Ohio.
After Mitchell's death his wife (now Mrs. Galway) qualified as the administratrix of his estate in the Hamilton County Probate Court of that State. She had no children by her first husband, and by the laws of Ohio the appraisers of the estate, when there is not sufficient personal property, are required to set off or fix upon a sum of money for the support of the widow for one year. The personal property was of the value of fifty dollars, and the appraisers allowed her the sum of four thousand dollars for the year's support, and that allowance was approved by the probate court.
The widow then filed a petition in the probate court, in which she set forth the amount allowed her by the appraisers, and that her husband died seized of real estate in the cities of Louisville and Covington, in the State of Kentucky, and by the law of Ohio she could reduce her claim to a judgment, and was entitled to subject the real estate in Kentucky to the payment of the allowance — that the claim is a preferred claim for which she asks judgment. The probate court confirmed the allowance to the widow, and adjudged "that the said Mary Mitchell recover from the assets, real and personal, of said estate, the sum of four thousand dollars, and the same is declared to be the first and best lien and charge against the said estate of said intestate."
It is alleged and not denied that by the law of the State of Ohio the widow has a lien for the allowance to her on both the real and personal estate left by the intestate.
The appellant inherited from his half brother (the husband of the appellee) the real estate in the State of Kentucky, and there being no estate of any kind owned by the intestate in the State of Ohio, his widow and administratrix instituted this action in the Kenton Chancery Court to subject the real estate in Kentucky to the payment of this allowance made by the probate court of Ohio. The Chancellor below subjected the realty, and his right to do so is the principal question involved in this case.
Counsel for the appellee bases his right of recovery upon the alleged ground that the allowance to the widow was a debt against the estate of her husband, and the right to this allowance having been created by the statute of Ohio, the courts of Kentucky should enforce it. It is also insisted that it is a right growing out of and incidental to the marriage contract, and for that reason the judgment below should be sustained.
Again, that the probate court of Ohio having adjudged the allowance to the widow to be a valid claim, the courts of this State have no power to revise that judgment.
If the probate court of Ohio had jurisdiction to render such a judgment — and that can not well be questioned in the present state of the pleadings — that judgment is binding as to the amount of the allowance on all the parties properly before that court; but it can not affect those who were not parties to the proceeding. It is not pretended that appellant was a party to this proceeding in Ohio by the widow, either in her own right or as the personal representative of her husband, and, therefore, the question as to the propriety of the allowance may be raised by the answer of the defendant, when his estate is sought to be subjected to its payment; but the issue to be considered here is, "Can the appellant assert her claim against the real estate of the appellant derived by descent from her husband?" The statute of Ohio gives to her as his widow a lien on all the estate, real and personal, of the intestate for her support for one year, and it may be called a claim against his estate, for by the statute conferring the right she has a preference over ordinary creditors, perhaps all creditors.
We shall assume not only that the probate court of Ohio had jurisdiction to make the allowance, but that by the statute of that State the appellant could have subjected the real and personal estate of the intestate within the jurisdiction of the courts of that State to its payment, and at the same time it is manifest that no proceeding by the courts of Ohio could create a lien on appellant's land in Kentucky. (Paige, &c., v. McKee, 3 Bush, 135.)
The entire claim of the appellee springs from the marital relation and vested in her, by reason of the statute of Ohio, she surviving the husband, as much of his estate, whether real or personal, as would support her for the period of one year. It became a fixed interest in her husband's estate in the event she survived him, as much so as her interest as dowress or her right to share in the distribution of the personalty. The statute, in fact, gave her a sufficiency of the real estate of her husband, or the right to subject so much as might be necessary, which is in effect the same, to satisfy the allowance. This allowance is regarded in Kentucky as a part of the expenses of administration, the widow being allowed before distribution certain specified articles, and if they are not...
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