Hirschman v. Brashears

• Decision Date: 18 February 1881
• Citation: 2 Ky.L.Rptr. 246,79 Ky. 258
• Parties: Hirschman v. Brashears, & c.
• Court: Kentucky Court of Appeals

79 Ky. 258

2 Ky.L.Rptr. 246

Hirschman v. Brashears, & c.

Court of Appeals of Kentucky.

February 18, 1881

1. The will creates in Mrs. Brashears a separate estate.

2. The power to sell the separate estate of the wife does not include the power to mortgage for the debts of the husband.

APPEAL FROM CARROLL CIRCUIT COURT.

JNO. &amp J. W. RODMAN AND MASTERSON & GAUNT FOR APPELLANT.

1. The will does not prevent any of the devisees from subjecting the estate devised to the payment of any debt they may bind themselves to pay. (Petty v. Malier, 14 B. Mon 247; 5 B. Mon., 327; 7 Bush, 461.)

2. It is against the policy of the law that property shall be given to a person, and that the devisee shall not be able to dispose of it.

J. A DONALDSON FOR APPELLEE.

The will makes the property the separate estate of Mrs Brashears, and interdicts its conveyance, by mortgage or otherwise, to pay her husband's debts. (Griffith v. Griffith, 5 B. Mon., 144; Hutchinson v. Jones, 1 Duv., 76; Shackleford v. Collier, 6 Bush, 157; 8 Ib., 395; 18 B. Mon., 306; 3 Met., 244; 17 B. Mon., 59; 2 Bush, 115.)

OPINION

COFER CHIEF JUSTICE:

The intention of the devisor that the land should not be made subject to the husband's debts is very clear from the will, and this intention would be disregarded if a judgment enforcing the appellant's mortgage was rendered.

In our opinion, the will creates in Mrs. Brashears a separate estate; and although she and her husband may have had power to sell it, or her interest in it, they could not mortgage it to secure his debt. The statute provides that the separate estate of a married woman may be sold and conveyed by her and her husband, and trustee, if there be one, but that no such sale shall be made when forbidden by the deed or will under which it...