Farmer v. Sales

REES, Chief Justice. Beatrice Sales died intestate June 12, 1945, a resident of Daviess county. She left her husband, George B. Sales, one brother and three sisters surviving her. On October 19, 1945, Mary Taylor Farmer, claiming to be a creditor of the estate of the decedent, brought this action against George B. Sales and the brother and three sisters of Beatrice Sales to recover $987, with interest from January 1, 1942, and for a settlement of the decedent's estate. No personal representative had been appointed prior to the institution of the action. It was alleged in the petition that the decedent, at the time of her death, owned an undivided one-half interest in two tracts of land in Ohio county, one containing 16 acres and the other 25 1/2 acres, and that plaintiff owned the remaining one-half interest. It was further alleged that the decedent owned a house and lot in Owensboro, Daviess county, Kentucky; that the two tracts of land in Ohio county, if sold, would not be sufficient to satisfy plaintiff's demand; that each of the tracts was indivisible, and could not be divided without impairing its value or the value of the plaintiff's interest therein, and it would be necessary to sell the Owensboro property to pay the remainder of plaintiff's demand. The plaintiff asked for a sale of the land described in her petition and for a final settlement of the estate of Beatrice Sales. Summons was executed on each of the defendants on October 19, 1945, and on the same day, on motion of the plaintiff, the action was referred to the master commissioner with directions to him to advertise for, take proof of, and report claims. The commissioner filed his report on December 3, 1945, and on December 10, 1945, no exceptions having bee filed, his report was confirmed. On December 3, 1945, the defendants filed a general demurrer to the petition, and a hearing thereon was continued from time to time until December 17, 1945, when the demurrer was overruled. Thereupon the defendants filed the following special demurrer: 'The defendants, and each of them, demur specially to plaintiff's petition because it shows that the plaintiff has not legal capacity to maintain this action.' The special demurrer was sustained, and the plaintiff's petition was dismissed without prejudice. The plaintiff appeals. The action is clearly one to settle the decedent's estate, and the plaintiff's right to bring the action is governed by subsection 1 of section 428 of the Civil Code of Practice, which reads: 'A representative, legatee, distributee or creditor of a deceased person may bring an action in equity for the settlement of his estate [provided that no such suit shall be brought by any of the parties named except the personal representative until the expiration of six months after the qualification of such representative.]' The petition alleged that the decedent died intestate leaving no children or issue of her body surviving her, but leaving her husband and as her sole and only heirs at law one brother and three sisters, all of whom were made defendants. It further alleged that no administrator had been appointed, and that the decedent left no personal estate but left only the real estate described in the petition. The real estate, of course, vested in the decedent's heirs at law at her death, and they were necessary parties in an action seeking to have a lien adjudged on the land for the debts of the decedent. The petition stated a cause of action, and the general demurrer was properly overruled.