McCoy v. Ferguson

• Decision Date: 23 May 1933
• Citation: 60 S.W.2d 931,249 Ky. 334
• Parties: McCOY et al. v. FERGUSON et al.
• Court: Kentucky Court of Appeals

60 S.W.2d 931

249 Ky. 334

McCOY et al. v. FERGUSON et al.

Court of Appeals of Kentucky

May 23, 1933

Appeal from Circuit Court, Pike County.

Action by J. M. Ferguson against C. F. McCoy, as guardian of Vernon Ferguson, a minor, in which Vadna Ferguson and others were subsequently made parties. From the judgment rendered defendant McCoy and others appeal.

Reversed with directions.

H. H Huffaker and John R. Moreman, both of Louisville, Kirk &amp Wells, of Paintsville, and W. K. Steele, of Pikeville, for appellants.

J. H Adkins, Stratton & Stephenson, J. M. Bolling, and A. E. Auxier, all of Pikeville, for appellees.

RICHARDSON Justice.

Vernon Ferguson on the 2d day of June, 1923, was an infant, fifteen years of age, residing in Pike county, Ky. C. F. McCoy by proper orders of the county court was appointed and qualified as his guardian. John M. Ferguson, a resident of Pike county, Ky. died testate, leaving surviving him several children, including Vernon Ferguson, Sr. An action was instituted to partition the land owned by John M. Ferguson among the devisees named in his will. Vernon Ferguson, Sr., was allotted 110 acres, and accordingly a deed was executed and delivered to him on the 19th day of April, 1899. Vernon Ferguson, Sr., died intestate, leaving Vernon Ferguson, Jr., surviving him as his only child and heir at law, but left surviving him a widow, Florence Cox Ferguson, who married C. F. McCoy, the present guardian of Vernon Ferguson, Jr. There were born to Florence Ferguson McCoy and C. F. McCoy four children, Ernest, Clyde, Zelma, and Eugene McCoy, who, of course, are half brothers and sisters of Vernon Ferguson, Jr.

Condemnation proceedings were instituted in the United States District Court of the Eastern District of Kentucky to condemn a portion of the 110 acres which descended to Vernon Ferguson, Jr. The land was sold under a judgment of the court, the purchaser paying therefor $15,000, which was paid to C. F. McCoy as guardian for Vernon Ferguson, Jr., on the 2d day of June, 1923. Vernon Ferguson, Jr., married Vadna Ferguson, then died intestate, without issue, still an infant, in the year 1927, leaving her surviving him as his widow. Ernest, Clyde, Zelma, and Eugene McCoy, his half brothers and sisters, and J. M. Ferguson, his grandfather, are his only heirs at law. C. F. McCoy as guardian of Vernon Ferguson, Jr., made settlements with the county court of Pike county, of his accounts as guardian. After the death of Vernon Ferguson, Jr., his grandfather, J. M. Ferguson, filed this action against C. F. McCoy, guardian, to surcharge these settlements, and to require an accounting and the payment of the $15,000 to him, insisting that the money was the proceeds of land arising from a sale in the condemnation proceedings, and that same were real estate under the statutes of descent and distribution of Kentucky, and that under section 1401, Ky. St., as grandfather, he was entitled thereto, Vernon Ferguson, Jr., having acquired during infancy, the land by descent from his father, and departed this life before the age of maturity. A judgment was rendered in accordance with the prayer of the petition. On appeal to this court it was reversed because of defect of parties. On its return to the circuit court, Vadna Ferguson, Ernest, Clyde, Zelma, and Eugene McCoy, by appropriate pleadings, were made parties. Vadna Ferguson as widow asserted her rights to the $15,000 as personalty and asked that if it be determined by the court that the $15,000 was not personalty, then she was entitled to dower therein as the widow of Vernon Ferguson, Jr., under section 2132, Ky. St. She also, by proper allegations, sought to surcharge the settlements of C. F. McCoy as guardian of Vernon Ferguson, Jr. Ernest, Clyde, Zelma, and Eugene McCoy asserted that the $15,000 was personal property under the statute of descent and distribution and that they and the widow were entitled to the whole of it. Sections 1395 and 1403, Ky. St. The circuit court on the pleadings and the evidence allowed C. F. McCoy credits totaling $1,235, charged him with $13,765, and decreed that the same having been realized from the sale of land by the United States government in the condemnation proceedings, and Vernon Ferguson having died in infancy, without issue, the residue of the $15,000 was real estate within the meaning of sections 1393 and 1401, Ky. St.; that Vadna Ferguson was entitled to 24.3 per cent., or $1,998.35, as of September 8, 1929, as her dower therein, and that J. M. Ferguson, the grandfather of Vernon Ferguson, was entitled to the residue, or 75.7 per cent., amounting to $6,225.32 as of September 8, 1927, with interest. A judgment was so entered against C. F. McCoy as guardian and the United States Fidelity & Guaranty Company as surety on his bond. At the time of the rendition of the judgment there were, in the hands of McCoy as guardian on deposit in the Pikeville National Bank, $4,041.33, and a note of T. M. Berry, etc., of $1,500, secured by a mortgage. This cash and note were directed by the judgment to be paid and delivered in part satisfaction of the $13,765 with which the guardian was charged. Relief was denied the half brothers and sisters of Vernon Ferguson, Jr. The parties are here presenting the same contentions they respectively made in the circuit court.

A judicial sale of the land was a conversion of the real estate into personalty. The proceeds in the hands of the guardian, from the moment he received them until the death of the ward, were, and continued to be, personal property as between him and his ward, within the meaning of section 2015, Ky. St., et seq. At the death of the ward, only for the purpose of descent and distribution, the proceeds are regarded by the law as real estate. Until his death, they were personal property in the hands of his guardian, and controlled by section 2027 and including section 2043, Ky. St., and the construction thereof as has been given them in many cases by this court.

Subsection 6 of section 494 of the Civil Code of Practice provides that real estate owned by persons under disability, such as infancy, unsound mind, or an adult married woman, when sold under the provisions of chapter 14 of the Civil Code of Practice, when such owner shall die without issue, without having received the proceeds, the person who would have been entitled to the property, if it had not been sold, shall be entitled to the proceeds, or the property in which they have been invested. Weisiger v. McDonald, 116 Ky. 862, 76 S.W. 1080, 81 S.W. 687, 25 Ky. Law Rep. 1053, 26 Ky. Law Rep. 416; Terrell v. Maupin, 83 S.W. 591, 26 Ky. Law Rep. 1203. While the provisions of this section do not embrace sales of land of an infant who dies in infancy, without issue, when not made under the provisions of chapter 14, Civil Code of Practice, before the proceeds have been disposed of by his guardian in the exercise of the power and in the discharge of the duties imposed upon him by section 2027, Ky. St., et seq., yet this Code provision manifests the policy of the law not to permit a judicial sale of an infant's land and a conversion thereby into personalty, to exempt the proceeds from the operation of the statutes of descent and distribution of the real estate of an infant. Collins v. Champ's Heirs, 15 B. Mon. 118, 61 Am. Dec. 179.

In McClain v. McClain, 151 Ky. 356, 151 S.W. 926, Ann. Cas. 1915A, 155; Id., 152 Ky. 206, 153 S.W. 234, Ann. Cas. 1915A, 155, the real estate of a lunatic was sold by order of court for the purpose of paying his debts. It was held that the surplus proceeds remained realty and the widow was entitled only to dower therein, such surplus not having been disposed of by the husband during his life.

In Haggard v. Rout's Heirs, 6 B. Mon. 247, a testator directed his executrix to sell a particular tract of land and invest the proceeds in other lands. He left surviving him four children, one of whom died in infancy leaving no issue, and for the purpose of disposition, it was held that the proceeds retained the character of real estate notwithstanding the conversion, and passed by descent and distribution to the surviving brothers and sisters.

In Weisiger v....