Smith v. Maxwell

Court of Appeals of Kentucky

Smith v. Maxwell

13 Ky. 471, 3 Litt. 471, 1823 Ky. LEXIS 117

DecidedJune 20, 1823

StatusPublished

This text of 13 Ky. 471 (Smith v. Maxwell) 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

Smith v. Maxwell, 13 Ky. 471, 3 Litt. 471, 1823 Ky. LEXIS 117 (Ky. Ct. App. 1823).

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Opinion

Opinion op the Couht.

AT the April term 1819, ofthe county court of Warren county, an order was made without shewing upon whose application, appointing commissioners to allot to Jane Maxwell, widow of David Maxwell deceased, her dower in the lands ánd slaves of her late husband. At the May term following, the commissioners not having made any report, the order appointing them was set aside on the application of the widow, and other commissioners appointed in their stead; but at the July term next thereafter, the commissioners appointed at tha April term, made a report of the allotment of dower io the widow, which was approved and ordered to be recorded; and at the October term following, the commissioners appointed at the May term, made a report [472]*472containing a different allotment, which was also approved and ordered to be recorded.

Smith having intermarried with the widow, they have brought this writ of error to the order made at the July term. 1819, approving and ordering the report of the first set of commissioners to be recorded.

The county courts are only authorised to appoint commissioners to ma*ke an allotment of dower, when the application is made by the widow or some other person whose duty it is to make the application; and the order in such case, we apprehend, ought, therefore, to shew upon whose application it was made; and as the order appointing the commissioners at the April term 1819, does not shew upon whoso application it was made, it must be deemed erroneous, and consequently the order approving and recording the allotment made by those commissioners, must be erroneous.

But it is also erroneous, because the order appointing those commissioners, was, at the May term, set aside and others appointed in their stead, and of course their authority was thereby revoked and annulled.

It is, therefore, considered by the court, that the order made at the July term 1819 of the said Warren county court, approving and admitting to record the allotment made by the commissioners appointed at the April term of said court preceding, be reversed, annulled and set aside and held for nought, and that the plaintiffs in error recover of the defendants theirixosts, &c.

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Opinion op the Couht.

AT the April term 1819, ofthe county court of Warren county, an order was made without shewing upon whose application, appointing commissioners to allot to Jane Maxwell, widow of David Maxwell deceased, her dower in the lands ánd slaves of her late husband. At the May term following, the commissioners not having made any report, the order appointing them was set aside on the application of the widow, and other commissioners appointed in their stead; but at the July term next thereafter, the commissioners appointed at tha April term, made a report of the allotment of dower io the widow, which was approved and ordered to be recorded; and at the October term following, the commissioners appointed at the May term, made a report [472]*472containing a different allotment, which was also approved and ordered to be recorded.

Smith having intermarried with the widow, they have brought this writ of error to the order made at the July term. 1819, approving and ordering the report of the first set of commissioners to be recorded.

The county courts are only authorised to appoint commissioners to ma*ke an allotment of dower, when the application is made by the widow or some other person whose duty it is to make the application; and the order in such case, we apprehend, ought, therefore, to shew upon whose application it was made; and as the order appointing the commissioners at the April term 1819, does not shew upon whoso application it was made, it must be deemed erroneous, and consequently the order approving and recording the allotment made by those commissioners, must be erroneous.

But it is also erroneous, because the order appointing those commissioners, was, at the May term, set aside and others appointed in their stead, and of course their authority was thereby revoked and annulled.

It is, therefore, considered by the court, that the order made at the July term 1819 of the said Warren county court, approving and admitting to record the allotment made by the commissioners appointed at the April term of said court preceding, be reversed, annulled and set aside and held for nought, and that the plaintiffs in error recover of the defendants theirixosts, &c.

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Bluebook (online)

13 Ky. 471, 3 Litt. 471, 1823 Ky. LEXIS 117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-maxwell-kyctapp-1823.