Luckett v. Beavon

Court of Appeals of Kentucky

Luckett v. Beavon

4 Ky. Op. 402, 1870 Ky. LEXIS 391

DecidedOctober 11, 1870

StatusPublished

This text of 4 Ky. Op. 402 (Luckett v. Beavon) 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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Luckett v. Beavon, 4 Ky. Op. 402, 1870 Ky. LEXIS 391 (Ky. Ct. App. 1870).

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Opinion

Opinion oe the Court by

Judge Robertson :

When the burnt record of the will and probate was supplied in the county court by oral testimony, the same court had jurisdiction either tó supply, in the same way, the executorial bond executed at the time of probate, or to take a new bond with the same or other securities. The court chose to take a new bond in lieu of the original. If this discharged the original sureties from all liability, the sureties in the substantial bond are liable from the .date of the burnt bond. But however this may be,' the new bond expressly binds its sureties to pay all legacies, including that to the lunatic for life, and afterwards to others; and therefore it is immaterial to this liability whether the amount of that legacy was collected since or before the date of the new bond.

Nor is it in this case material whether the new bond was in legal effect a discharge of the sureties on the burnt bond, or only a supplemental obligation. If merely supplemental, the sureties in it may be entitled to contribution' by those in the first bond; but the appellants have not either shown who were the first parties, or requested them to be made parties, or asked any judgment against them. And it was not the duty of the appellee to do this for them.

We also think, and especially as the will so directed, that.the circuit court properly ordered the $1,000.00 to be paid to the committee of the lunatic.

We perceive no substantial error in the record.

Wherefore, the judgment is affirmed.

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Opinion oe the Court by

Judge Robertson :

When the burnt record of the will and probate was supplied in the county court by oral testimony, the same court had jurisdiction either tó supply, in the same way, the executorial bond executed at the time of probate, or to take a new bond with the same or other securities. The court chose to take a new bond in lieu of the original. If this discharged the original sureties from all liability, the sureties in the substantial bond are liable from the .date of the burnt bond. But however this may be,' the new bond expressly binds its sureties to pay all legacies, including that to the lunatic for life, and afterwards to others; and therefore it is immaterial to this liability whether the amount of that legacy was collected since or before the date of the new bond.

Nor is it in this case material whether the new bond was in legal effect a discharge of the sureties on the burnt bond, or only a supplemental obligation. If merely supplemental, the sureties in it may be entitled to contribution' by those in the first bond; but the appellants have not either shown who were the first parties, or requested them to be made parties, or asked any judgment against them. And it was not the duty of the appellee to do this for them.

We also think, and especially as the will so directed, that.the circuit court properly ordered the $1,000.00 to be paid to the committee of the lunatic.

We perceive no substantial error in the record.

Wherefore, the judgment is affirmed.

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4 Ky. Op. 402, 1870 Ky. LEXIS 391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luckett-v-beavon-kyctapp-1870.