Briggs v. Walker

• Citation: 43 S.W. 479,102 Ky. 359
• Parties: BRIGGS v. WALKER.
• Decision Date: 04 December 1897
• Court: Court of Appeals of Kentucky

43 S.W. 479

102 Ky. 359

BRIGGS v. WALKER.

Court of Appeals of Kentucky.

December 4, 1897

Appeal from circuit court, Jefferson county.

"To be officially reported."

James A. Briggs, as executor of the estate of C. M. Briggs deceased, filed his amended and supplemental answer and cross petition in the suit of McLemore, guardian, against Briggs' executor, alleging that Amanda M. Walker and the Ohio Valley Banking & Trust Company, as administrator of the estate of A. L. Shotwell, deceased, were each asserting a claim to a certain fund in his hands, and asking that they be required to set up whatever claims they had. Judgment was rendered for Amanda M. Walker and the Ohio Valley Banking &amp Trust Company, allowing them a share in the fund, but denying their right to interest during the time the fund was in the hands of the executor. James Briggs, as C. M. Briggs' executor, appeals, and Amanda M. Walker and the Ohio Valley Banking & Trust Company, administrator, prosecute a cross appeal. Affirmed.

Gibson & Marshall, for appellant.

Helm &amp Bruce, Chas. M. Walker, W. B. Dixon, and S. B. & R. D. Vance for appellee.

HAZELRIGG J.

The appellant James A. Briggs, as executor of C. M. Briggs, filed his amended and supplemental answer and cross petition in the suit of McLemore, guardian, against Briggs' executor, pending for the settlement of his intestate's estate in the Jefferson circuit court, chancery division, in which he averred that, since the last settlement of his accounts, he had succeeded in collecting from the United States government the "cotton claim" referred to in previous settlements; and that Amanda M. Walker and the Ohio Valley Banking & Trust Company, as administrator of the estate of A. L. Shotwell, deceased, were asserting some sort of claim against the money so collected by him; and he asked that, in order to a final settlement of his accounts, those parties be required to set up whatever claims they had. Accordingly, the parties named (being the present appellees) did appear and assert their claims; and, after a trial of the issues involved, judgment was rendered distributing the sum collected, namely $44,000, among three parties, viz. James A. Briggs, as executor of C. M. Briggs, Amanda M. Walker, as assignee of her husband, and the banking and trust company, as administrator of Shotwell; the shares of each being fixed according to the terms of a writing to be noticed presently. That Walker and the company should have been allowed any part of this "cotton claim" is the subject-matter of Briggs' complaint in this appeal.

It appears that on April 18, 1862, C. S. Morehead executed and delivered to his nephew C. M. Briggs the following writing: "For and in consideration of money loaned and advanced heretofore by C. M. Briggs, and further valuable consideration by way of suretyship for me by said Briggs, I hereby sell and transfer to said C. M. Briggs all the cotton on my two plantations in Mississippi, near Egg's Point and Greenville. Said cotton embraces all that I have baled and unbaled, gathered and ungathered. This is intended to cover all cotton that I have now or may have this year on said two plantations, supposed to be about two thousand bales. April 18th, 1862. C. S. Morehead." At the same time, C. M. Briggs executed and delivered to Samuel J. Walker, who was the son-in-law of Gov. Morehead, the following writing: "In consideration of the sale and transfer this day made to me by C. S. Morehead of all the cotton on his two plantations near Egg's Point, in the state of Mississippi, as specified in said sale and transfer, in writing, I hereby assume and agree to pay Samuel J. Walker the sum of forty thousand dollars due and owing to said Walker by said C. S. Morehead, upon condition, however, that I realize sufficient amount from any cotton on or from said plantation or proceeds of same, together with about twenty-five thousand dollars due me from said C. S. Morehead for moneys advanced and liability for him as surety, also about ten thousand dollars, more or less, being a claim of A. S. Shotwell as he may hereafter establish against C. S. Morehead; but, in case I should not realize sufficient to pay all of said claims or amounts named above in full, then I am to pay or divide the amount that may be realized from said cotton proportionately or pro rata according to the respective amounts named, to the parties above named; first, however, paying and refunding any moneys paid by the respective parties for or on account of expenses pertaining to same, and in case more should be realized than sufficient to pay said amounts, with interest thereon to the time of realization and payment, then any surplus to be divided, one-half to said Shotwell and [C. M. Briggs] jointly for any services, and the remaining one-half to said Samuel J. Walker, but no other consideration to be paid said Shotwell and Briggs for their services. April 18th, 1862. C. M. Briggs." Briggs at once took steps to get possession of the cotton, but, by reason of the operations of the Federal and Confederate forces in its vicinity, was unsuccessful. The cotton was finally seized by the Federal authorities, who sold it, and the money was paid into the treasury of the United States.

C. M Briggs died in 1875, after unsuccessful and repeated efforts to obtain the money for which his cotton sold. Thereafter his executor undertook the task, and finally, in June, 1888, through his attorneys, obtained the passage of the following act of congress: "Be it enacted," etc., "that the court of claims is hereby given, subject to the proviso hereinafter mentioned, like jurisdiction to hear and determine the claim of the legal representatives of C. M. Briggs, deceased, for the proceeds of 455 bales of cotton, now in the treasury of the United States, alleged to have been owned, in whole or part, by said Briggs as is given to said court by the acts of March 12th, 1863, and July 2nd, 1864, upon petition to be filed in said court at any time within two years from the passage of this act, any statute of limitations to the contrary notwithstanding:...