Benson v. Simmers

• Decision Date: 02 December 1899
• Citation: 53 S.W. 1035
• Parties: BENSON v. SIMMERS. [1]
• Court: Kentucky Court of Appeals

53 S.W. 1035

BENSON v. SIMMERS. ^[1]

Court of Appeals of Kentucky.

December 2, 1899

Appeal from circuit court, Nelson county.

"Not to be officially reported."

Action by Matilda Benson against J. W. Simmers to enforce a lien on property devised to defendant for the payment of certain debts due by the testator. Judgment for defendant, and plaintiff appeals. Affirmed.

John D Wickliffe and Morgan Yewell, for appellant.

John S Kelley, for appellee.

WHITE J.

In 1885 Susette E. Simmers, being then the wife of appellee, executed at different dates three notes to appellant, Matilda Benson,--one note for $400, one for $200, and one for $40. Two of these notes recite that they were given for borrowed money. In 1888 Susette E. Simmers died without issue, having first made and published a will. This will was, after her death, admitted to probate. It is dated in 1873. By this will a certain house and lot in Bardstown were devised to appellee, her husband; and, after some other specific devises, all the residue was devised to appellant, her mother. There is no question but that the property devised to appellee, Simmers, was separate estate, with full power in testatrix to deed or will same. In 1879 there was deeded to testatrix a certain farm for her separate use, but there was no power to deed or will same. After Susette Simmers died and an administrator with the will annexed qualified, an action was brought to settle the estate, there being debts due by testatrix; one, of considerable amount, being a mortgage on the land acquired in 1879. In that settlement suit, appellant was made a party, being the residuary legatee and the only heir of Susette E. Simmers. By a judgment in that action all the estate of testatrix not specifically devised was sold, and the proceeds applied to the payment of the debts of testatrix. In 1897 the appellant brought this action against appellee, as devisee of Susette E. Simmers seeking to recover the amount of the three notes executed in 1885, and asking a lien on the property devised to appellee to secure the payment. These notes were not filed or presented in the settlement suit, nor was anything received thereon from the sale of property in the settlement suit. The petition contains proper averments of the execution of the notes, and of the devise to appellee of sufficient property to more than pay same. There is, however, no averment of the fact that testatrix, Susette E. Simmers, was at the dates of their execution a married woman, nor any averment as to any separate estate, or any intention to charge her separate estate with the amount of these notes. To this action appellee answered, and pleaded, in several paragraphs, that at the dates of the execution of the notes Susette E. Simmers, the payor, was a married woman, and that therefore the notes were void; that the real estate devised to appellee was the separate estate of testatrix, and was not chargeable with the debts evidenced by the notes sued on; that by the first clause of the will of testatrix it is provided that appellee should have this real estate on condition that appellee should cause to be erected over the graves of testatrix and of James N. Hayden, a former husband, a monument, at a cost of not less than $350, and that on that condition appellee accepted the devise, and erected said monument at a cost of $350; that appellant was a party to the suit to settle the estate of Susette E. Simmers, and, having failed to there present her claims against the estate, is barred and estopped from now asserting any claim therefor; that in the action of settlement the court, by its judgment, determined that appellee had performed the condition specified in the will and erected the monument, and therein confirmed the devise of the property to appellee. Appellee also pleaded the statute of limitation...