Phalan v. Louisville Safety-Vault & Trust Co.

• Decision Date: 13 December 1888
• Parties: PHALAN v. LOUISVILLE SAFETY VAULT & TRUST Co. et al.
• Court: Kentucky Court of Appeals

10 S.W. 10

88 Ky. 24

PHALAN v. LOUISVILLE SAFETY VAULT & TRUST Co. et al.

Court of Appeals of Kentucky.

December 13, 1888

Appeal from Louisville chancery court; I. W. EDWARDS, Chancellor.

Action by the Louisville Safety Vault & Trust Company, as guardian of Eliza Sutfield, against its ward and the widow and other children of O. T. Sutfield, deceased, for a sale of all the lands of the decedent, and for a reinvestment of the proceeds. The lands lie in the city of Louisville, and in the counties of Hardin, Henry, and Oldham. Sale ordered, and Maurice Phalan became the purchaser of the land situated in Henry county. Phalan excepted to the report of the sale, but his exceptions were overruled, and he appeals.

Wm Carroll, for appellant.

John C Russell, J. C. Dodd, and Dodd & Grubbs, for appellees.

PRYOR J.

The statutory guardian of Eliza Sutfield filed its petition against its ward, Eliza, and her infant sister, Florence, and her statutory guardian, John H. Leathers, the widow and two adult children of the decedent, all of whom are made defendants, asking the sale of two tracts of land owned jointly by the defendants, lying in Henry, Oldham, and Hardin counties, and the sale of some city lots in Louisville, for the purposes of reinvestment, alleging that the sale of all the property will redound greatly to the interest of its ward. The adult heirs and the widow file an answer, in which they consent to the sale, and ask a division of the proceeds the widow agreeing to accept the value of her dower in money and joining in the prayer of the petition. Leathers, the guardian of Florence, both being served with process, filed his answer, asking a sale of the entire property for the benefit of his ward, and an investment of the proceeds so as to produce an income. His ward, Florence, is not made a defendant to his pleading, but is a defendant to the original action. The testimony in this case makes out a much stronger reason for selling the property than is alleged in the petition. It appears that the decedent and ancestor of these parties owned an estate valued about $120,000, with an indebtedness of $40,000; that liens existed on some of the property for the purchase money; that the family dwelling in Louisville was worth about $20,000, and no sufficient income to keep it up and maintain the family. Under such circumstances, the widow and adult heirs consenting, it was proper to sell the land in Henry and Hardin counties, and make other investments that would produce an income and prove more beneficial to the parties in interest. The object is to sell and reinvest the money, and this is expressly authorized by subsection 5, § 489, Civil Code. It is said, however, that Leathers, the guardian of Florence, failed to make her a defendant, and, although a defendant to the original petition filed by the guardian of her sister, Eliza, it was necessary that Florence should be made a defendant to the answer of her guardian, who consents to the sale. Section 490 of the Code authorizes a sale where the property cannot be divided without materially impairing its value or the value of the plaintiff's interest therein. Here is a joint interest, where it is evident that a sale is for the benefit of all, not only to pay the debts, but to afford an income, as well as to divide the proceeds...