Thompson's Ex'rs v. Stiltz

• Decision Date: 23 October 1906
• Parties: THOMPSON'S EX'RS v. STILTZ ET AL.
• Court: Kentucky Court of Appeals

96 S.W. 884

THOMPSON'S EX'RS v. STILTZ ET AL.

Court of Appeals of Kentucky.

October 23, 1906

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

"Not to be officially reported."

Action by Jacob F. Stiltz and others against Joseph Thompson's executors. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

W. W Crawford, Wm. Furlong and Burnett & Burnett, for appellants.

O. A Wehle and L. B. Wehle, for appellees.

O'REAR J.

Godfrey Stiltz, now dead, devised all his estate equally to his seven children. Two of his sons, George G. and William, were made executors. His estate consisted of something over $5,000 in bonds and stocks, and land of the value of about $25,000. One of the executors, William Stiltz, having become embarrassed and in sore need of immediate funds, induced the devisees to allow him to appropriate the whole of the personal estate in anticipation of his distributive share of the entire estate of the testator. This was done. The devisees thereupon executed to the executors, authorizing them to turn over the personalty to William Stiltz, a writing in which the market value of the securities appropriated was agreed upon. In this writing it was provided "that at the division of the real and personal estate of Godfrey Stiltz's estate said William Stiltz be charged with the value of said effects, to wit, $5,110.90." At the bottom of the paper William Stiltz endorsed and signed a statement that he had received the foregoing securities "on account of my share in the estate of my father, Godfrey Stiltz, deceased, at the agreed price of $5,110.90, and that at the division of the real and personal estate of said Godfrey Stiltz, deceased, I be charged on account of said securities or effects with the sum of $5,110.90." This paper was not acknowledged or recorded. Prior to the death of Godfrey Stiltz, William Stiltz had become bound on a note to Joseph Thompson for $5,000. This was subsequently reduced to judgment against him. After the death of Godfrey Stiltz, and after the appropriation and the execution of the paper set forth above, Thompson's executors caused an execution issued on his judgment against William Stiltz to be levied upon the undivided share of William Stiltz in the real estate devised by Godfrey Stiltz's will.

Before any sale under the execution this action in equity was begun whereupon Thompson's executors, as execution creditors on the one side, and Godfrey Stiltz's devisees, other than William Stiltz, on the other, are litigating the superiority of their respective equities. The latter contend that an equitable lien was created in their favor upon William Stiltz's share of the real estate devised by his father by the execution of the paper and its consideration; Thompson's executors contend that the paper does not create a lien, because it does not sufficiently describe the land as to satisfy the statute of frauds; that the words of the paper are not sufficient to create a lien, though the land were described; and that the land descended to the devisee free from any debts due by him to either the executors of the testator, or to his heirs. Thompson's executors had no lien upon the land until they had caused their execution to be levied upon it. They then got only a lien, as it has not been carried into a title by sale and conveyance. Hence, if Stiltz's devisees got a lien by their paper, it is the elder, and will prevail in equity. It becomes necessary to decide first whether Stiltz's devisees have a lien. William Stiltz's share or interest in...