Cralle v. Marshall

5 Ky. Op. 41, 1872 Ky. LEXIS 179

• Court: Court of Appeals of Kentucky
• Decided: February 29, 1872
• Status: Published

Opinion

Opinion of the Court by

Judge Pryor :

The exceptions to the commissioner’s report filed by the appellees ought not to have been sustained except as to the small note of H. W. Cralle. The proof shows clearly that the obligors in the notes were insolvent, and to have instituted suit would only have burdened the estate with costs. Hawkins, the' son-in-law of the Devisor Cralle, was supporting and maintaining the widow under an agreement with the executor. She doubtless preferred living with her daughter, and Hawkins was not willing, or able, by reason of his poverty and> insolvency, to take care of his mother-in-law, without being paid the money by the executor to enable him to comply with his agreement. It was proper for the executor to pay it, although Hawkins was indebted to the estate. If he had refused to pay the money, the consequence would have been a separation of the mother from the daughter, and a payment of the money for her support to some one else. The settlement shows an indebtedness to the executor, and no judgment should have been rendered against him.* It appears from the commissioner’s report that the widow is dead, and the money or notes in the hands of the receiver may be sufficient to pay these appellees what is due them, or at least their pro rata portion after full and final settlement, etc. The judgment of the court below is reversed and the cause remanded for further proceedings not inconsistent with this opinion.