Rodgers v. Rodgers' Adm'r

• Decision Date: 16 May 1895
• Parties: RODGERS et al. v. RODGERS' ADM'R et al.
• Court: Kentucky Court of Appeals

31 S.W. 139

RODGERS et al. v. RODGERS' ADM'R et al.

Court of Appeals of Kentucky.

May 16, 1895

Appeal from circuit court, Owen county.

"Not to be officially reported."

Action by G. W. Rodgers' administrator and others against Lucy Rodgers and others to procure sale of real estate. From a judgment for plaintiffs, the infant defendants, by their guardian ad litem, appeal. Affirmed.

A. M Baker, for appellants.

J. W Green, for appellees.

EASTIN J.

At the March term, 1846, of the Owen county court, a paper purporting to be the last will of one Henry W. Rodgers was admitted to probate by that court, and, by its terms, the testator devised the 176 acres of land in controversy herein to his wife for her life, and, after her death, to his sons Robert Rodgers and G. W. Rodgers, jointly. Some time prior to the death of the widow and life tenant, which occurred in the year 1890, Robert Rodgers had died; and in 1891 the brother G. W. Rodgers died, neither of them having made a will, and neither leaving children, but leaving several sisters and a large number of nephews and nieces. So far as the record shows, no administration was granted upon the estate of Robert Rodgers, but the appellee J. L. Green was, in the year 1891, appointed administrator of the estate of G. W. Rodgers. This administrator had married a sister of Robert and G. W Rodgers, and on the 19th day of October, 1891, this action was instituted in the Owen circuit court, in the names of himself, as administrator, and of his wife, Jane Green, as one of the heirs at law of said Robert and G. W. Rodgers, in which he also joined as her husband, against all the other heirs at law of said Robert and G. W. Rodgers, asking for a sale of the entire track of 176 acres of land. In his capacity of administrator, he alleged that it was necessary to sell the undivided interest of G. W. Rodgers for the payment of debts, his personal estate being insufficient for that purpose, while the sale of the entire tract was asked on the ground of indivisibility between his wife, who united with him in the petition, and the other heirs at law of said Robert and G. W. Rodgers. He also asked that his accounts as administrator be settled, and that the creditors of his intestate be required to present their claims in the action. In this double aspect the case was conducted. All persons having claims against the estate of his intestate, so far as known, as well as all persons having an interest in the land, as heirs at law of Robert Rodgers or G. W. Rodgers, were made parties. A commissioner was appointed by the court, to hear proof of claims, and also to report upon the question of indivisibility and the propriety of selling the whole tract. A report was filed by this commissioner, and confirmed by the court; and, in pursuance thereof, it was adjudged that a sale of G. W. Rodgers' undivided interest was necessary for the payment of his debts, and that the whole tract should be sold for the purposes of division. A commissioner was appointed to make the sale, with instructions to have the land surveyed, and a plat made with reference to offering it in two parcels, and also as a whole, in order to secure the best price possible. These instructions were carried out, and the property was sold upon the terms fixed in the judgment, and bonds taken from the two purchasers. It appears that among the large number of parties made defendants, as heirs at law, and as having an interest in the land, there were 13 infants, for whom a guardian ad litem was appointed, and that none of these numerous defendants, except these infants by their guardian ad litem, ever made a defense, or ever offered any objection to any of the proceedings, or are now doing so, but that this appeal is now being prosecuted solely on behalf of said infants upon various questions raised by the guardian ad litem during the progress of the trial. There is no objection made by any purchaser, and no question from this source as to the regularity of the proceedings on the validity of the title passed thereunder. The sole practical question, therefore, to be considered by us, is whether or not any of these proceedings were so far erroneous and to the prejudice of these infants as to entitle them to a reversal. The grounds of complaint relied on by the guardian ad litem are so numerous that we may not be able to consider them all in detail, but we shall content ourselves with referring briefly to and passing upon those which seem to be most strongly urged.

In the first place, as to the general demurrer and the special demurrer based upon a supposed defect of parties to the petition which were filed by the guardian ad litem, it is true that, so far as this action was designed to procure a sale of the undivided interest of G. W. Rodgers for the payment of debts only, the proceeding is regulated by one section of the Code, and that the administrator alone was a necessary plaintiff in such an action. While so far as it had in view a sale of the whole tract, on the ground of indivisibility, his coplaintiffs were the only necessary parties plaintiff, and the proceeding would have been instituted under another section of the Code, yet, if all requirements of both sections have been complied with, and, if the rights of these infants have not been prejudices, we fail to see in this any ground for reversing the judgment on their appeal. No injury to their substantial rights is shown to have resulted therefrom, but, on the contrary, it appearing that both the sale of the undivided interest, for the purpose of paying debts and the sale of the whole tract, for the purpose of division, were necessary and proper, and that each and all of these numerous parties would have been necessary parties to both suits if the relief had been sought in separate suits, except that the administrator need not have been made a party to a suit to sell for indivisibility, it seems to us that appellants have been benefited, rather than damaged, if all the necessary relief has been obtained by one suit and one sale instead of two.

In the next place, as to the failure of plaintiffs below to fill the blank in their petition showing the proceeds of the personal estate sold, it is true that it should affirmatively appear in a petition filed by an administrator, asking a sale of real estate for the payment of debts, that there is an insufficiency of personalty for that...