Pendergest v. Heekin

• Decision Date: 23 May 1893
• Parties: PENDERGEST et al. v. HEEKIN et al.
• Court: Kentucky Court of Appeals

22 S.W. 605

94 Ky. 384

PENDERGEST et al. v. HEEKIN et al.

Court of Appeals of Kentucky.

May 23, 1893

Appeal from circuit court, Pendleton county.

Suit by Sophia Pendergest and another against James Heekin and another to set aside a levy of execution on plaintiffs' homestead. From a judgment for defendants, plaintiffs appeal. Reversed.

John H Barker, for appellants.

J. T Simon, for appellees.

BENNETT C.J.

John A Pendergest died testate. By the terms of his will his wife gets all his property during life or widowhood, remainder to his son, but in case he should die before his mother, and without issue, then she gets the estate absolutely. The testator's estate devised consisted of a house and lot in the town of Falmouth, not worth exceeding $1,000. After the death of the testator the widow contracted some debts to the appellees, Heekin and Hill, upon which they obtained judgment in the Pendleton circuit court. Executions were obtained thereon, and levied upon the house and lot devised. This suit was brought to set aside the levies, and an injunction to prevent the sale until the court could act was obtained. The executions were levied upon the idea tat the debts were created by the testator in his lifetime, and that the property-his homestead-could be sold subject to the homestead right of the widow and infant children therein; but the debts were not debts due by the testator. Now, according to the decision of this court, (see Myers' Guardian v. Myers' Adm'r, 89 Ky. 442, 12 S.W. 933,) a testator may will his homestead, and invest the devisee, though such devisee may be his wife or child, with the title, the same as he could do by deed. In such case, if the real estate devised is not worth more than $1,000, the devisee, if he has a family, is entitled to a homestead under the provisions of the General Statutes; and, if it takes the property devised to make it, it is not subject to his debts made prior thereto, because property acquired by descent or will is not subject to the prior debts of the devisee to the extent of a homestead therein, nor is it subject to the debts of the devisee created after the property was thus acquired. In this case the widow is entitled to a homestead in said property, she having a family.

It is however, urged that as there was a motion to dissolve the injunction, and as it was dissolved, the appellants' remedy was to apply to have the injunction reinstated, and...