Spradlin v. Stanley's Adm'r

• Decision Date: 22 February 1907
• Citation: 124 Ky. 701,99 S.W. 965
• Parties: SPRADLIN ET AL. v. STANLEY'S ADM'R ET AL.
• Court: Kentucky Court of Appeals

99 S.W. 965

124 Ky. 701

SPRADLIN ET AL. v. STANLEY'S ADM'R ET AL.

Court of Appeals of Kentucky.

February 22, 1907

Appeal from Circuit Court, Floyd County.

"To be officially reported."

Proceedings by Samuel Stanley's administrator and others for a settlement of the estate of Samuel Stanley, deceased, and a sale of so much of his real estate as might be necessary to pay debts, in which Julia Spradlin and others, widow and children of decedent, were made parties defendant. From a judgment allowing claims and approving the sale of real estate, the widow and children appeal. Affirmed in part and reversed in part.

James Goble, for appellants.

W. S Harkins, for appellees.

HOBSON J.

Samuel Stanley died a resident of Floyd county on January 24, 1901 leaving a will by which, among other things, he directed his executor to pay his debts as soon as practicable after his death. F. P. Conley was appointed administrator of the estate with the will annexed, and, the personal property being exhausted, brought this suit on February 10, 1904, for a settlement of the estate and a sale of so much of the land as might be necessary to pay the debts. The widow and children were made defendants to the action. The children all being infants, a guardian ad litem was appointed for them. The case was referred to the commissioner to report the debts. He took proof and filed a report, allowing debts against the estate to the amount of something over $300. The report was confirmed without exception, and, the guardian ad litem having filed a report that after a careful examination of the record he was unable to make an affirmative defense, the circuit court ordered a sale of the land owned by the testator, or so much of it as might be necessary to pay the debts and costs. This judgment was entered on June 28, 1904. The commissioner sold under the judgment a tract of land on August 22, 1904, for $450, which was sufficient to pay the debts, interest, and costs. William M. Conley was the purchaser. The land sold was appraised at $450. The report of sale was filed and confirmed without objection, and a deed made to the purchaser on October 28, 1904, the purchaser being awarded a writ of possession for the land. After all this, on the 24th of August, 1906, this appeal was sued out by the widow and children, the widow having in the meantime married a second time.

In the brief for appellees it is urged that the appeal should be dismissed as to the widow because not taken within two years after the judgment of sale was entered. But no plea of limitation has been filed. Where an appeal is sought to be dismissed on the ground that it is barred by limitation, the statute must be pleaded. It cannot be made available unless it is pleaded. Riley v. Reed, 13 Bush, 411.

The objections made to the proceeding rest mainly upon the ground that the claims allowed against the estate were not properly verified. No objection was made in the circuit court upon this ground. A party who is sui juris cannot stand by and permit the commissioner's report allowing claims against the estate which are not properly verified to be confirmed and a judgment to be entered without objection, and for the first time make the objection on appeal to this court that the claims were not properly verified; for, if the claims had been objected to in the circuit court, the claimants might have supplied the necessary affidavits. Where a party who is sui juris stands by and permits the claims to be allowed without objection, he must be held on appeal to have consented to the allowance of the claims, or to have waived his objection to the want of proper verification. The purpose of setting a commissioner's report of debts for exceptions in a case like this is to give the parties an opportunity to present to the court any objections they may have, and to allow parties sui juris to make no objections in the circuit court, and for the first time, on appeal to this court, insist that the claims were...