Daven's Exors. v. Ash

Court of Appeals of Kentucky

Daven's Exors. v. Ash

4 Ky. Op. 576, 1870 Ky. LEXIS 426

DecidedJune 1, 1870

StatusPublished

This text of 4 Ky. Op. 576 (Daven's Exors. v. Ash) 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.

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Daven's Exors. v. Ash, 4 Ky. Op. 576, 1870 Ky. LEXIS 426 (Ky. Ct. App. 1870).

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Opinion

Opinion of the Court by

Judge Hardin:

The agreement of T. Ash and wife, of record in connection with the judgment for the recovery of the slave Bedford, as we construe it, bound them in consideration of the judgment to account for the sum of $700 furnished by Ben Davens to pay for land, and $315, as the price of Bedford, as advancements in the settlement of Daven’s estate, when, it seems to have been contemplated, that the several sons of Davens would also account for nearly like sums advanced to each of them; but we do not think it was understood by the parties that Ash and wife should account for said advancements if the other distributees did not also account for advancements. But the whole matter was afterwards litigated in the suit [577]*577for a settlement and distribution, and the court upon its construction of Ben Davens’ will, decided that no advancements should be charged to any of the parties, and in effect decided that. Ash and wife should not account for said sums of $700 and $315. The suit was not dismissed as to them without prejudice, as seems to have been supposed, but it was only so dismissed as to the right of some other parties than Mrs. Ash and the executors. That judgment is, in our opinion, a bar to' the relief sought in this action, and for that reason, at least, the court in this case properly dissolved the injunction and dismissed the petition.

Grigsby, for appellant. Newman, for appellee.

Wherefore, the judgment is affirmed.

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Opinion of the Court by

Judge Hardin:

The agreement of T. Ash and wife, of record in connection with the judgment for the recovery of the slave Bedford, as we construe it, bound them in consideration of the judgment to account for the sum of $700 furnished by Ben Davens to pay for land, and $315, as the price of Bedford, as advancements in the settlement of Daven’s estate, when, it seems to have been contemplated, that the several sons of Davens would also account for nearly like sums advanced to each of them; but we do not think it was understood by the parties that Ash and wife should account for said advancements if the other distributees did not also account for advancements. But the whole matter was afterwards litigated in the suit [577]*577for a settlement and distribution, and the court upon its construction of Ben Davens’ will, decided that no advancements should be charged to any of the parties, and in effect decided that. Ash and wife should not account for said sums of $700 and $315. The suit was not dismissed as to them without prejudice, as seems to have been supposed, but it was only so dismissed as to the right of some other parties than Mrs. Ash and the executors. That judgment is, in our opinion, a bar to' the relief sought in this action, and for that reason, at least, the court in this case properly dissolved the injunction and dismissed the petition.

Grigsby, for appellant. Newman, for appellee.

Wherefore, the judgment is affirmed.

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Bluebook (online)

4 Ky. Op. 576, 1870 Ky. LEXIS 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davens-exors-v-ash-kyctapp-1870.