Willis v. Terry

• Decision Date: 11 January 1894
• Citation: 24 S.W. 621
• Parties: WILLIS v. TERRY.
• Court: Kentucky Court of Appeals

24 S.W. 621

WILLIS v. TERRY.

Court of Appeals of Kentucky.

January 11, 1894

Appeal from circuit court, Barren county.

"Not to be officially reported."

In proceedings for the distribution of the estate of George B Willis, deceased, C. W. Terry intervened, claiming, as execution creditor, the interest of Frank Willis, one of the distributees. From a judgment for intervener, Laura Willis wife and mortgagee of Frank Willis, appeals. Reversed.

Geo. T Duff, for appellant.

W. L Porter, for appellee.

PRYOR J.

George B. Willis died the owner of 300 acres of land, leaving a widow and 15 children surviving him. He devised his estate, real and personal, to his wife for life, and, at her death, directed the land sold, and the proceeds divided equally between his children. The widow died in the year 1889, and an action was instituted in the court below for a sale of the land, and a distribution of the proceeds between the children. In November, 1883, one of the children, Frank Willis, being indebted to his (Frank's) wife, indorsed, by note executed to her, a mortgage to secure the payment. The land is described in the mortgage as the "one-fifteenth part of my interest in the real and personal estate of my mother, Elizabeth Willis." The purpose of the instrument, as is maintained in argument, was to mortgage to the wife the interest of Frank (her husband) in the realty left by his father. That the widow had only a life estate, that ended its duration when she died, and the language used in the deed was merely descriptive of the land mortgaged. In the year 1886, nearly three years after this mortgage had been given by Frank Willis to secure this debt to his wife, the appellee, C. W. Terry, had an execution placed in the hands of the sheriff, that was levied on this interest of Frank Willis in the land of his father, subject to the mortgage executed to the wife, and, when sold, was purchased by Terry, and a deed made to him by the sheriff, subject to this mortgage. The creditor Terry came into court in this action for distribution, and asserted his right to the entire proceeds of sale, on the ground that the mortgage passed nothing to the wife of Frank Willis, as it embraced the estate of the mother of Frank, and not that of his father, and also claimed the mortgage void for uncertainty in description of the land conveyed. The court below gave the entire proceeds of sale to Terry, and excluded the wife,...