Payne v. Pollard

66 Ky. 127, 3 Bush 127, 1867 Ky. LEXIS 142

• Court: Court of Appeals of Kentucky
• Decided: January 23, 1867
• Status: Published

Opinions

JUDGE WILLIAMS

delivered tiie opinion of tiie court:

By section 2, chapter 106, on “Wills,” 2 Stanton’s Revised Statutes, 457, it is provided, every person of sound mind, who may have arrived at majority, not being a married woman, may, by last will, dispose of their estate.

By section 4, “ a married woman may, by will, dispose of any estate, secured to her separate use, by deed or devise, or in the exercise of a special power to that effect.”

Mrs. Payne, the testatrix, had seven children by her first husband, H. B. Pollard. After his death, and before her marriage to Spencer Payne, she acquired, by purchase, and deed, the legal title to a tract of land, which was not a separate estate, but is general to her, her heirs and assigns, without the exclusion of the marital rights of any future husband.

As Spencer Payne survived her, she was a married woman at her death, and could legally pass, by last will, only such separate estate as she then had. This real estate, therefore, descended to her heirs-at-law, without any power in her to deprive them thereof by last will; and the interest of Geo. B. Pollard, one of her children and heirs-at-law, was subject to be levied upon under execution against him. But, as it is evident that it was held jointly with others, the officer should have proceeded as directed by the act of February 12, 1858. (2 Stanton’s Revised Statutes, 513.)

If the joint owners, being notified by the officer of the levy, notify him that they claim a joint interest, it is his duty to return the facts, and the plaintiffs are thereupon to proceed in equity. Here the officer knew of the joint ownership, and that the joint owners were minors. The officer should not have made a sale; but the statute secures a lien to the execution creditor, which he can enforce by equitable proceedings.

It was erroneous to dismiss plaintiff’s petition, notwithstanding the sale and conveyance by the officer was invalid; yet appellant acquired a valid lien by the levy of his execution, which the court, on proper proceedings, should perfect, by a sale of the land levied upon, to satisfy it; and, to this end, should first partition G. B. Pollard’s interest, after having all necessary parties properly before the court.

Judgment reversed, with directions for further proceedings as herein indicated.