Parsons v. Spencer

• Decision Date: 24 October 1885
• Citation: 7 Ky.L.Rptr. 329,83 Ky. 305
• Parties: Parsons, & c., v. Spencer, & c.
• Court: Kentucky Court of Appeals

83 Ky. 305

7 Ky.L.Rptr. 329

Parsons, & c., v. Spencer, & c.

Court of Appeals of Kentucky.

October 24, 1885

APPEAL FROM MARION CIRCUIT COURT.

SAMUEL AVRITT FOR APPELLANTS.

1. As the judgment sought to be enforced does not show on its face that Mrs. Spencer was a married woman at the time judgment was rendered against her, that fact must be taken advantage of by plea and not by demurrer.

2. There are many cases in which it is proper to render a personal judgment against a married woman; therefore, the presumption is in favor of the validity of such a judgment.

3. If a judgment is not void, but merely irregular or erroneous, it can not be attacked collaterally. (Watson v. Morrison, 4 Bibb, 336; McIlvoy v. Speed, 4 Bibb, 85; Wallace v. Usher, 4 Bibb, 508; Shackleford v Miller, 9 Dana, 274; Bennington v. Reed, 8 B M., 103; Hynes v. Oldham, 3 Mon., 267; Gardner v. Strader, 5 Litt., 315; Sanders v Gatewood, 5 J. J. Mar., 328; Green v. Ball, 4 Bush, 590; Dunlap v. McIlvoy, 3 Litt., 278; Spalding's Adm'r v. Wathen, 7 Bush, 662.)

4. A judgment against a married woman is binding until reversed. Coverture, like any other defense, must be relied upon. (Fauntleroy's Heirs v. Crow's Heirs, 5 B M., 138; Jarman, & c., v. Wilkerson, 7 B. M., 294.)

5. A suit under section 439 of the Civil Code, upon a return of " no property," may be brought in the county of the defendant's residence. (Civil Code, section 70; Nixon v. Jack, 16 B. M., 181.)

6. Whatever estate Mrs. Spencer took under her father's will is subject to the payment of her debts, notwithstanding the intention of the testator that it should be otherwise. (Monroe and Harlan's Digest, vol. 1, page 443, section 13; Revised Statutes, vol. 2, page 230; General Statutes, page 588, section 21; Eastland v. Jordan, 3 Bibb, 186; Jones v. Langhorne, 3 Bibb, 455; Samuel & Johnson v. Ellis, & c., 12 B. M., 479; Pope's Ex'rs v. Elliott, & c., 8 B. M., 62; Samuel, & c., v. Salter, & c., 3 Met., 260.)

7. The separate estate of a married woman may be subjected to the payment of her debts. (Jarman, & c., v. Wilkerson, 7 B. Mon., 294; Bell & Terry, & c., v. Kellar, 13 B. M., 384; Lillard v. Turner, 16 B. M., 375; Petty v. Malin, 14 B. M., 247; Johnston and Wife v. Jones, 12 B. M., 329; McClelland v. Hamilton's Adm'r, 5 Ky. Law Rep., 58.)

8. The doctrine of equitable settlement has no application as against the creditors of the wife.

9. The failure of the judgment to give the names of the heirs in whose favor it was rendered does not render it void for uncertainty. (Shackleford, & c., v. Fountaine's Heirs, 1 B. Mon., 253.)

10. The whole estate devised to Mrs. Spencer, and not merely the yearly proceeds, may be subjected to the payment of her debts. (Bowles v. Winchester, & c., 13 Bush, 1; Samuel, & c., v. Salter, & c., 3 Met., 260.)

11. In any event, the annual rents and profits may be subjected. (Young v. Miles, 10 B. M., 289; Montjoy v. Lashbrook, 8 Dana, 33.)

HARRISON & BELDEN AND W. E. & S. A. RUSSELL FOR APPELLEES.

1. This action necessarily involves the settlement of the estate of a deceased person, and should, therefore, have been brought in the county wherein administration was granted. (Civil Code, title 10, chapter 3; Bennett v. McCorcle, 3 Met., 332.)

2. The provision in the testator's will that the estate devised to his daughter should not be subjected to the payment of her debts, was not a fraud upon her creditors, and should be regarded by the Chancellor.

3. Only so much of a married woman's separate trust estate as remains after furnishing her a support can be subjected to the payment of her debts. (Alexander & Co. v. Owens, 4 Ky. Law Rep., 621.)

4. The judgment sought to be enforced is void for uncertainty. (Freeman on Executions, par. 16; Ordinary v. McClure, 1 Bailey, 7; Farmer v. Grant, 10 Bush, 362; Bridges v. Caldwell's Ex'rs, 2 A. K. Mar., 613.)

OPINION

HOLT JUDGE:

This is an action brought by the heirs of Wm. P. Moore against W. H. Spencer and his wife, Eliza Spencer, and others, in the Marion Circuit Court, to enforce the collection of a judgment rendered in favor of the plaintiffs in the Taylor Circuit Court against W. H. and Eliza Spencer, as to which there had been a return of nulla bona, by subjecting to its payment whatever Mrs. Spencer acquired under the will of her father, W. M. Green. The petition alleges that the plaintiffs recovered the judgment " against the defendants, W. H. Spencer and Eliza S. Spencer, his wife." The copy of the judgment, filed with the petition, shows that it did not set out the names of the plaintiffs. The caption of it is " W. P. Moore's Heirs v. Susan Shepherd, & c.," and it is merely recited in the body of it that it is " adjudged that the heirs, plaintiffs in this action, recover of the defendants, W. H. Spencer and Eliza Spencer," & c.

We think that the averment, supra, of the petition amounts to an allegation that Mrs. Spencer was a feme covert when the judgment was rendered; and that the plaintiffs in this suit are the same persons who were named as " heirs" in the judgment.

The petition was dismissed upon a demurrer, the grounds of which are, first, that the Marion Circuit Court had no jurisdiction of the action; second, that Mrs. Spencer was a married woman when the judgment was rendered, and that it is, therefore, void; third, that the property interests acquired by her under the will of her father are not liable for her debt; and fourth, that the judgment does not show in whose favor it was rendered, and by reason of its uncertainty can not be enforced.

This is not a suit to settle the estate of Wm. Green, but to subject to the payment of the plaintiffs' debt the interest acquired by Mrs. Spencer under her father's will. It is alleged in the petition that the defendants reside in Marion county, and this fact, under section 70 of the Civil Code, gave the Marion Circuit Court jurisdiction of the case.

It has been held, and we are not disposed to depart from the precedent, that a judgment which does not name the plaintiffs individually, but simply designates them as the " heirs" of a certain person, is not void for uncertainty. (Shackleford, & c., v. Fountain's Heirs, 1 T. B. Monroe, 252.)

It is true that a judgment, to be in forma, should show who has succeeded, what has been recovered, and from whom; or, in brief, what has been determined by the court; but in the instance just given, and that now under consideration, no injustice can be done, because, if questioned, certainty can easily be arrived at as to the persons in whose favor the judgment was rendered by the record or papers of the suit, and it is not void. The omission of their individual names in the judgment was a clerical misprision, which can be amended, if need be, by the original record.

The will of Wm. Green provides:

" I give and bequeath all my estate, both personal, real, and mixed to my only daughter, Eliza J. Spencer, during her natural life, for her own special and separate use, exclusive of her husband, and not to be subject to or liable for debts or liabilities she may have or hereafter contract, and at her death it is my wish and desire that all my estate not used or consumed, as hereinafter provided, descend to the children and grandchildren of my daughter, Eliza J. Spencer, if there should be any children or grandchildren of her's living. If not, it is then my desire that my estate be equally divided between the children of my sister, Sarah A. W. Neal. * * * * My executor * * * * is fully authorized to sell and convey all or any part of my real estate, by and with the consent of my daughter, and to reinvest the same in real estate as a homestead for my daughter, with as much of my personal estate as he may deem advisable, and that he loan on interest my personal estate so as to make to best of his judgment the more profitable return, paying annually to my daughter the profits of my estate. "

There can be no doubt but what, under it, Mrs. Spencer was entitled to the income arising from the entire estate, and the entire beneficial interest in it, after the payment of the testator's debts. The personal representative is to be regarded as a trustee for her for this purpose; and while a court should not divest him of the possession of the property, it will, although the testator did not so intend subject the use or income arising from it to the payment of any debt...