McClain v. McClain

• Decision Date: 20 December 1912
• Citation: 151 Ky. 356,151 S.W. 926
• Parties: McCLAIN v. McCLAIN et al.
• Court: Kentucky Court of Appeals

151 S.W. 926

151 Ky. 356

McCLAIN v. McCLAIN et al.

Court of Appeals of Kentucky.

December 20, 1912

Appeal from Circuit Court, Montgomery County.

Proceedings by J. Will Clay as administrator of John McClain, deceased for the distribution of the assets of the estate between Mamie L. McClain, widow, and Fay C. McClain and others children. From a decree of distribution, Mamie L. McClain appeals. Affirmed.

John A Judy, of Mt. Sterling, for appellant.

Lewis Apperson, of Mt. Sterling, for appellees.

CLAY C.

John McClain was the owner of a farm in Montgomery county, Ky. On December 10, 1908, he was adjudged insane by the Montgomery county court, and J. Will Clay was appointed his committee. Prior to the time that he was adjudged insane, he had executed and delivered three mortgages on his farm, one for $5,000 to the Northwestern Mutual Life Insurance Company, one for $1.500 to H. Clay Turner, and one for $500 to the Exchange Bank of Kentucky. His wife, Mamie L. McClain, united in these mortgages.

On December 28, 1908, J. Will Clay, as committee for John McClain, brought this action against John McClain and the wife and creditors of John McClain for the purpose of selling the farm in question, in order to pay the debts of John McClain, and to provide for the maintenance and support of his wife and children. The petition alleged and the proof showed that the land could not be divided without materially impairing its value. The case was referred to the master commissioner of the Montgomery circuit court, and after proper steps had been taken before him the land was ordered sold as a whole, and so much of the proceeds as was necessary was applied to the payment of John McClain's debts. To this action Mamie L. McClain, the wife, filed answer, relinquishing her potential right of dower, and asking that the funds remaining after the payment of the debts of John McClain be invested for the support of herself and the infant children of John McClain.

On February 12, 1910, John McClain was adjudged of sound mind. At the April term, 1910, of the Montgomery circuit court, John McClain appeared and filed in this action his petition and answer, setting forth the fact that he had been adjudged of sound mind, and asking that the balance of the proceeds of his property be turned over to him. Thereupon the court entered an order, directing the funds in the hands of the committee to be turned over to John McClain. This was done. At that time the last bond executed for the purchase of the farm was not due, and McClain never collected any of its proceeds.

On September 15, 1910, John McClain was again adjudged insane by the Montgomery circuit court, and M. C. Clay was appointed his committee. Thereupon M. C. Clay qualified and filed his petition in this action, asking to be made a party. An order was entered making him a party, and he then proceeded, under the order of the court, to collect the last sale bond due on the farm in question.

John McClain died in November, 1911, and J. Will Clay qualified as his administrator. Thereupon J. Will Clay, as such administrator, filed his petition and answer in this action, setting out the fact that there were no assets belonging to John McClain, except the funds in the hands of his committee, and asking that the court disburse the sum to the widow and children of John McClain, according to their respective rights. The chancellor adjudged that the widow, Mamie L. McClain, was entitled to one-third of the proceeds for life, and this sum he ordered invested in real estate for the use and benefit of the widow for and during her natural life, with remainder to the five children of John McClain. The balance of the proceeds he ordered divided equally between the children. From that judgment the widow, Mamie L. McClain, prosecutes this appeal.

The sole question to be determined is whether or not the proceeds of the last sale bond should be treated as realty or personality. If the former, Mamie L. McClain is entitled to one-third thereof for life, as provided in the judgment of the chancellor....