Sims v. Lively
| Decision Date | 01 January 1854 |
| Citation | 53 Ky. 433 |
| Court | Kentucky Court of Appeals |
| Parties | Sims <I>vs.</I> Lively. |
Samuel Finley, of Hart county, made his will in 1832, which was proved and admitted to record in the same year, by which he directed, first, the payment of all his debts, and disposed of the whole of the estate by specific provisions. In the seventh clause of the will, (at page 9,) a devise is made to two sons, Hardin and Preston Finley, of three hundred and fifty acres of land, four negro men, wagon, and farming utensils of every kind, two mares, and his entire stock of hogs; to which is appended these words:
Hardin and Preston Finley were appointed executors of the will, and qualified and gave bond.
In 1839 Hardin and Preston Finley sold and conveyed the tract of land, devised to them by their father, to Henry P. Lively, for the consideration of $1,200, and put him in possession of it. The negroes they sold to others, some of whom are made defendants to this suit. In January, 1844, Preston Sims having arrived at the age of twenty-one years, filed this bill in chancery in the Hart circuit court against Hardin and Preston Finley, the two executors and devisees, and their sureties in their executorial bond, and against Lively, the purchaser of the land, and against some of those who had purchased some of the four negro men, in which is alleged the failure of the devisees and executors, H. and P. Finley, to give him the education directed by the will of his grand-father, to give the horse, saddle, and bridle, and to buy the six hundred acres of land in Illinois; and making Addison Sims, who was still a minor, also a defendant, as well as the other devisees of Samuel Finely; and asking the court to subject the three hundred and fifty acres of land in the possession of Lively, the purchaser, to the payment of the value of the land which was to be purchased in Illinois, the education, &c., which is alleged to have been withheld, and for general relief.
Addison Sims, on arriving at full age, filed his answer, making it a cross-bill, and uniting with Preston, prays for the same relief. Lively answered, denying notice, and controverting the relief sought. The case progressed to a final hearing in 1852, when the circuit judge dismissed the bill of Preston, and cross-bill of Addison, as to all the defendants except Hardin and Preston, the executors and devisees, and decreed against them the value of the land which was to be purchased in Illinois.
G. W. CRADDOCK, for plaintiffs —
B. & J. MONROE, for defendants —
BARRET and WOOD, for defendant, Lively — Judge MARSHALL delivered the opinion of the court.
Samuel Finley, by his will admitted to record in June, 1832, after devising to his two sons, Hardin and Preston, land, slaves, and personalty constituting much the largest portion of his estate, says, in a subsequent and distinct clause, "It is my will and desire that my sons, Hardin and Preston Finley, out of the bequests above named, to them made, purchase for my grandchildren, Preston Sims and Addison Sims, six hundred acres of good arable lands, with a sufficiency of timber to support it, in one, two, or more tracts, as my sons may think best for the children, in some good part of the state of Illinois." To which he adds, "It is also my will and desire that they collect the sums due to my said grandchildren from the estate of their father, and that they have the use of that in the purchase of the land aforesaid;" and he says further in a succeeding clause, "It is also my will and desire that my two sons, Hardin and Preston, at their own expense, send the said Preston and Addison Sims to school, until they shall have received a good English education, and at the age of twenty-one years, each of said boys receive of them a good horse, bridle, and saddle." And in the conclusion of the will he appoints his sons, Hardin and Preston, executors of his will.
The benefit intended to be secured to the two grandsons, by the clauses above quoted, is all that is given to them by the will; but their uncles, the devisees, sold the tract of land, of the value of $1,200, four slaves, of the value of $2,300, and personalty of considerable value, and left the country insolvent, without complying with the trust imposed on them with respect to these two nephews, or either of them. And in June, 1844, Preston Sims, having recently arrived at full age, filed his bill against them and their sureties, in their executorial bonds, and against Lively, who in 1839 had purchased the land devised to Hardin and Preston Finley, alleging that the land in Illinois was never purchased for himself and brother, and that neither of them had received the education or the horse, saddle, and bridle directed to be provided for them, and praying a decree against some or all of these parties by which he shall be compensated; Addison Sims was also made a defendant, and in May, 1845, he having attained full age, filed a cross-bill by which he in effect becomes a co-complainant with his brother, praying for the same relief and on the same grounds.
The defendants deny their liability; allege that the complainants had received or disposed of the funds coming to them from their father's estate, which, in any event, they claim as a credit, and Lively prays contribution from the purchasers of the slaves, whom he makes defendants to his cross-bill. A jury was impanneled to ascertain the value of the land devised to Hardin and Preston Finley, and also that of the slaves, and of the personalty, and to ascertain the value of the six...
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