Bridgford, Trustee, v. Barbour, &C.

• Decision Date: 07 December 1882
• Citation: 80 Ky. 529
• Parties: Bridgford, trustee, v. Barbour &c. Bowles v. Bowles' ex'r. Bowles' trustee v. Same.
• Court: Kentucky Court of Appeals

Page 529

80 Ky. 529

Bridgford, trustee, v. Barbour &c.

Bowles v. Bowles' ex'r.

Bowles' trustee v. Same.

Court of Appeals of Kentucky.

December 7, 1882.

APPEAL FROM LOUISVILLE CHANCERY COURT.

THOS. W. BULLITT AND BULLITT & HARRIS FOR APPELLANTS.

A. P. HUMPHREY, GEO. M. DAVIE, AND A. E. RICHARDS FOR APPELLEES.

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

A part of the present record, involving a settlement of the estate of Joshua B. Bowles, deceased, has been heretofore in this court, and the rights of his heirs and devisees finally disposed of as to the issues then made. The principal issue determined on the former hearing was as to the nature and character of advancements made to each of his heirs and devisees. What constituted an advancement, and when the advancement was to be charged, were questions that had necessarily to be determined before a final settlement and division of the estate could be made between the parties in interest. The case went back from this court, after all such questions had been passed on, for the purpose of a final settlement and distribution that all the parties were seeking to obtain.

The testator died, leaving a last will, but omitted to devise by any of its provisions some valuable real estate, and leaving property devised and undevised, it became necessary to equalize the heirs and devisees in the division and distribution of the undevised estate. The action was originally instituted by Thomas J. Barbour as the sole executor of the will of the testator, in which he alleged that a sale of the real estate was necessary for the payment of debts, and asked for a reference to the matter that a settlement might be had, showing the condition of the estate, and the necessity for making a sale of a part of the realty. He asked for a settlement of his accounts as executor, and for a partition of the real estate remaining after the payment of debts, &c., and also attempted to set forth the advancements made to each heir and devisee, with a view of having this settlement and partition. He further asked for all such orders and decrees as may be just and equitable, and for all general relief. After the filing of this petition, to which James Bowles, one of the present appellants, was made a defendant, the latter, upon his motion, was united with Barbour as plaintiff in the original action, it appearing that, by the will of the testator, both Barbour and James Bowles (a son of the testator) had been designated as executors, and had qualified. An amended petition was then filed by the two executors, asking the same relief as in the original action by Barbour — that their accounts be settled, and a discharge from all liability as executors; that their individual interests be protected, concluding with a prayer for all proper equitable and general relief.

It seems that, prior to the death of the testator, Barbour (named as one of the executors), as his agent, had collected rents from this realty, and that after his death continued to collect the rents up to 1874. After 1874, the rents of this undevised estate (the realty) were collected by the appellant James Bowles, and in the report of his settlement made with the commissioner in this action some time in the year 1875, he is charged with the rents, having reported them as a part of the estate of his devisor; or, if not a part of his estate, as assets, for which he should account in the distribution or partition of the estate between himself and the other heirs. The precise amount of rent collected and accounted for by James Bowles does not appear, but it is manifest that he was accounting for the rent up to that time as if it constituted a part of the estate of the testator. When the report of settlement up to that date in 1875 was confirmed, and the question of advancements passed on by the court below, the case was brought to this court by an appeal, and the judgment left undisturbed by the decision here, except as to the advancements.

After the appeal had been taken, and before the return of the case to the lower court, James Bowles made an assignment of the whole of his estate for the benefit of creditors, to the appellant Bridgford. The case having been reversed, and the rights of the heirs and devisees settled as to advancements, the court below proceeded to settle the estate between all the parties in interest as if no assignment had been made by the appellant, J. W. Bowles. The latter proceeded to collect the rents accruing upon the undevised real estate during the pending of the appeal in this court, and long after the case had been remanded to the court below for further settlement. The commissioner made his additional report of settlement in June, 1877, by which it appeared that J. W. Bowles was indebted to the estate of his father in a sum exceeding eleven thousand dollars. About one half of this sum consisted of rents that he had collected from the undevised realty, all of which was reported and embraced in the report of settlement made by the commissioner. That report was approved by the court, and made the basis of the judgment from which this appeal is prosecuted. J. W. Bowles, in his own right, and as executor, and the assignee Bridgford, as the privy of J. W. Bowles, are each complaining of that judgment.

The judgment determines that J. W. Bowles is indebted to the estate of Joshua Bowles in the sum of $11,310.40, and as the share of J. W. Bowles in the real estate divided exceeded in value the amount he was owing the estate, the court adjudged that the share or lot assigned him should be charged with the payment of his indebtedness, and directed a sale for that purpose. The assignee Bridgford was not made a party to the action, nor did he assert any claim or interest in the subject-matter of controversy until after that final judgment, and has only complained by the prosecution of this appeal.

It is claimed by the appellants, J. W. Bowles and his assignee Bridgford, that the undevised real estate descended to the heirs of Joshua Bowles, deceased, and that in the collection of the rents, he was only acting as the agent of the other heirs, and liable to them in his individual capacity, and not as executor; that the assignee of J. W. Bowles was a purchaser for value, and held his interest in the undevised realty, by reason of the assignment for the benefit of all his creditors, and that no...