Jackson's Ad'R. v. Sublett
| Citation | 49 Ky. 467 |
| Parties | Jackson's Admr. <I>vs.</I> Sublett. |
| Decision Date | 02 September 1850 |
| Court | Kentucky Court of Appeals |
ON the 7th of January, 1846, Samuel D. Sublett executed to Mary Jackson, executrix of John Jackson, deceased, his note for $380, due twelve months after date. The payee died, and in 1848 Francis W. Jackson, a son of her intestate, brought an action and obtained a judgment at law, upon which an execution issued, and was levied by the Sheriff upon a negro man named Daniel. Mrs. Margaret Subtlett, the wife of the defendant, claimed the negro as her property, and a jury empaneled by the Sheriff to try the right of property, found a verdict that the negro was not subject to sale to satisfy the execution. The plaintiff having indemnified the Sheriff, he was about to sell the slave, when said Margaret Subtlett, by her next friend, filed this bill in chancery to prevent the sale.
The facts upon which she founds her claim, and which are not controverted, are, that in the year 1838 John Jackson, the father of said Margaret, made and published his last will and testament, and died before April 1841, at which time the will was admitted to record. By his will he gives to his wife a life estate in his negroes and some other property, and makes a few specific devises and bequests to others, and then in the fifth clause says; "It is my will and desire that all of my negroes not herein otherwise disposed of together with their increase, (should there be any,) likewise all the living stock that may be in my wife's possession, be as equally divided as possible, at her death, between my daughters Margaret C. Sublett, Martha W. Sloss, Mary Ann V. Atcheson and Antheline E. Jackson, should any of them die before such division, their children are to have their mother's share." The widow of the testator died in the year 1847. After her death, the slaves alluded to in the clause just quoted were by the husbands of the daughters (Antheline having in the meantime married Valentine) divided between them. The slave Daniel, with others, fell to the share of Sublett, who immediately took him into possession, and whilst in his possession the execution against him, was levied upon the slave as already stated.
The complainant claims that by the will of her father, she has an interest in the slave separate from her husband, and that by the act of Assembly, approved February 23d, 1846, entitled "an act further to protect the rights of married women," the said slave is not liable to be levied on or sold for the debts of her husband. That act among other things says, "that the slave or slaves of a married woman shall, hereafter, within this Commonwealth, be held and taken to be real estate, in so far that no slave or slaves, or the increase thereof, which any such married woman may have at the time of her marriage, or which may come, descend, or be devised or given to her during her coverture, shall be liable to the debts of her husband, or be attached, levied on, or sold, for his debts, or liabilities of any sort or kind, whether such liabilities accrued before or after marriage; nor shall the life estate of the husband, his wife living, be levied on executed or sold, for any such debts or liabilities." This act is not confied in its operation to marriages subsequent to its date, nor so far as the question of the liability of property to levy and sale is concerned, is it important at what period the debts were incurred by the husband.
Before examining into the meaning of that portion of the law already quoted, we will dispose of another question raised by the plaintiff in error, viz, that the consideration of the note sued upon was necessaries furnished for the family of complainant, and, therefore, the slave is not exempt from levy and sale. Without determining whether the proof is sufficient to establish the fact, the proposition is answered by saying that the debt was not "contracted or created jointly in writing by husband and wife," and, therefore, does not come within the provision of the statute which makes the property of the wife in such case liable.
The only remaining and important matter to be determined is, whether the complainant has such a separate interest in the slave in contest as to exempt him from levy and sale to satisfy the husband's debts. We learn from the decree in this cause, that inasmuch as the life estate did not terminate, and a division of property was not had among the daughters or their husbands, until the year 1847, the Judge regarded the slave as not having "come" to the complainant until a period subsequent to the act of 1846, and as, therefore, not liable to the husband's debts. Whether the Legislature, by the use of the word "come," intended to apply it to the time when actual posession and use should take place, or to the time when the wife should acquire an interest in the property by any other means than by descent or devise or gift during coverture, we deem it unnecessary to determine. But if the act was intended to have reference to the time only when possession came, although the legal right to the property had previously vested in the husband, according to the law in force before its enactment, then we think it should be...
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