Bradley v. Collins

Court of Appeals of Kentucky

Bradley v. Collins

1 Ky. Op. 509, 1867 Ky. LEXIS 316

DecidedApril 23, 1867

StatusPublished

This text of 1 Ky. Op. 509 (Bradley v. Collins) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bradley v. Collins, 1 Ky. Op. 509, 1867 Ky. LEXIS 316 (Ky. Ct. App. 1867).

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Opinion

Opinion op the Court by

Judge Hardin ;

According to our construction of the will of Samuel Grassland, deceased, the testator intended by the devise of the slaves, Rose, Bob, Luke, and others to “ Edward Grassland and his bodily [510]*510lieirs,” to vest in each of the children of Edward Grassland an equal, present interest with their father in the slaves, the words “ bodily heirs ” being used in a sense or meaning synonymous with that of “ children.”

Rodman, for Appellant. Bullock, for Appellees.

We are, therefore, of the opinion that the petition disclosed sufficient grounds for the interposition of a court of equity to enjoin the sheriff from selling the slaves.

It is insisted, however, that according to section 53 of the Civil Code, as heretofore construed by this court (Anderson v. Watson, 3 Met. 509), the action as brought in the name of appellant could.not be maintained, but it should have been brought in the names of the children by a next friend, as guardian. As there was no demurrer to the petition, that question seems only to have been incidentally involved in the ruling of the court. Certainly, .before dismissing the petition on this ground, considering the rights of the infants disclosed, the appellant should have been allowed to correct the irregularity by making them plaintiffs by amendment. It is provided by the fortieth section of the Civil Code that “ when a determination of the controversy between the parties before the court cannot be made without the presence of other parties, the court must order them to be brought in,” In our opinion, the chancellor was not only authorized by this enactment of the Code to order the infants to be made parties, but it was his duty to do so, in the exercise of his general supervision over the rights of infants, and it was erroneous to dismiss the action and dissolve the injunction without ordering this to be done.

Wherefore, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

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Opinion op the Court by

Judge Hardin ;

According to our construction of the will of Samuel Grassland, deceased, the testator intended by the devise of the slaves, Rose, Bob, Luke, and others to “ Edward Grassland and his bodily [510]*510lieirs,” to vest in each of the children of Edward Grassland an equal, present interest with their father in the slaves, the words “ bodily heirs ” being used in a sense or meaning synonymous with that of “ children.”

Rodman, for Appellant. Bullock, for Appellees.

We are, therefore, of the opinion that the petition disclosed sufficient grounds for the interposition of a court of equity to enjoin the sheriff from selling the slaves.

It is insisted, however, that according to section 53 of the Civil Code, as heretofore construed by this court (Anderson v. Watson, 3 Met. 509), the action as brought in the name of appellant could.not be maintained, but it should have been brought in the names of the children by a next friend, as guardian. As there was no demurrer to the petition, that question seems only to have been incidentally involved in the ruling of the court. Certainly, .before dismissing the petition on this ground, considering the rights of the infants disclosed, the appellant should have been allowed to correct the irregularity by making them plaintiffs by amendment. It is provided by the fortieth section of the Civil Code that “ when a determination of the controversy between the parties before the court cannot be made without the presence of other parties, the court must order them to be brought in,” In our opinion, the chancellor was not only authorized by this enactment of the Code to order the infants to be made parties, but it was his duty to do so, in the exercise of his general supervision over the rights of infants, and it was erroneous to dismiss the action and dissolve the injunction without ordering this to be done.

Wherefore, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

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1 Ky. Op. 509, 1867 Ky. LEXIS 316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradley-v-collins-kyctapp-1867.

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