Hinson v. Ennis

• Decision Date: 01 November 1883
• Citation: 81 Ky. 363,5 Ky.L.Rptr. 420,5 Ky.L.Rptr. 367
• Parties: Hinson v. Ennis.
• Court: Kentucky Court of Appeals

81 Ky. 363

5 Ky.L.Rptr. 420, 5 Ky.L.Rptr. 367

Hinson v. Ennis.

Court of Appeals of Kentucky.

November 1, 1883

A testator first directs that his debts be paid, and then devises to his wife one third of all the land owned by him to be laid off to her. By another clause, he devises the remainder of his land to his daughter.

1. Held --That the personalty proving insufficient to pay the debts, and the widow holding under the will, she must contribute to their payment as devisee.

2. The widow's share should be allotted to her, the proportion of debts to be paid by her ascertained, and as much of her land as is necessary be sold to pay her part of the debts.

APPEAL FROM ALLEN CIRCUIT COURT.

LESLIE & BOTTS AND LEWIS MCQUOWN FOR APPELLANT.

The devise to appellant is a specific devise, and the directions given by the testator show his purpose to set apart a certain tract of land to his widow, and that it should not be charged with any of his debts. It is certain as to the quantity of land devised and its location. Appellant is entitled, by a fair construction of her husband's will, to one third of all his land, and not one third of what remains after the payment of his debts.

W. L PORTER FOR APPELLEE.

The testator does not charge any particular part of his land with the payment of his debts, and the necessary presumption is that he either supposed his personal estate would be sufficient to pay his debts, or that the lands devised to his widow and daughter should bear their equal proportion of his debts. No other reasonable construction can be placed upon the will.

OPINION

PRYOR JUDGE:

In this case the question arises between the widow and the children of the testator upon a petition filed to pay his debts.

By the provisions of the will, the executor is directed to take charge of his estate and pay first all the debts of the testator. He then devises to his wife one third part of all the land owned by him at his death, to be laid off in a certain manner, as provided by the will. By the fourth clause, he devises the balance of his land to his daughter, & c. The personal estate being insufficient to pay his debts, it became necessary to sell enough of the land to pay the sum reported by the commissioner, amounting to about $2,600. The widow claimed that the entire landed estate given to the daughter should be exhausted before the devise to her was subjected; but the chancellor held otherwise,...