Trowbridge v. Cunningham

• Decision Date: 07 December 1901
• Docket Number: 12,052
• Citation: 63 Kan. 847,66 P. 1015
• Parties: ELLENDER W. TROWBRIDGE et al. v. BRIDGET CUNNINGHAM
• Court: Kansas Supreme Court

66 P. 1015

63 Kan. 847

ELLENDER W. TROWBRIDGE et al. v. BRIDGET CUNNINGHAM

No. 12,052

Supreme Court of Kansas

December 7, 1901

Decided July, 1901.

Error from Doniphan district court; WM. I. STUART, judge.

Judgment affirmed.

B. A. Seaver, and James L. Allen, for plaintiffs in error.

J. J. Barker, for defendant in error.

OPINION

Per Curiam:

This was an action to partition a fourteen-acre tract of land in Doniphan county formerly owned by Safford W. Trowbridge. He died intestate, and this and other real estate descended to his heirs, Ellender W. Trowbridge, his widow, and six children. A judgment was subsequently rendered against the widow in favor of Bridget Cunningham, and an execution was levied on an undivided half of the tract in controversy as the property of the widow. It was sold to the judgment creditor, who brought this proceeding to partition the tract, making the widow and children parties defendant, and a partition was adjudged.

Objections to the methods of appraisement and other steps preliminary to a sale are not good. They did not render the sale void, and such irregularities cannot be questioned in a collateral proceeding. (Paine v. Spratley, 5 Kan. 525; Pritchard v. Madren, 31 id. 38, 2 P. 691.)

The surviving wife inherited one-half of the real estate of the husband, and the undivided share thus allotted to her by the law may be levied on and sold for the payment of her indebtedness. (Gen. Stat. 1901, § 2510.) The answer of the widow stated that there had been no division of the estate among the heirs of the decedent, and that while Willis Trowbridge alleged an arrangement for a division, it only included the children of full age, and was not assented to by all the interested parties. In view of these facts, the testimony rejected, and about which complaint was made, was not material.

The judgment is affirmed.

DOSTER, C. J., JOHNSTON, SMITH, ELLIS, JJ.