Citation Numbers: 37 Ky. 430
Judges: Robertson
Filed Date: 12/15/1838
Status: Precedential
Modified Date: 7/29/2022
delivered the Opinion of the Court.
The only question in this case, is whether the Circuit ^ourt erred in sustaining a demurrer to a declaration, in case, averring, in substance, that the defendant, as the executor of the deceased father of the wife of one John Newman, had unjustly paid to the said Newman five hundred and seventy three dollars, eighty nine and a half cents, which had been decreed to himself and his
But we are of the opinion that no action can be sustained against the defendant, for performing the decree by paying the five hundred and seventy three dollars, eighty nine and a half cents to the husband, to whom, as well as his wife, he was directed by the decree to make payment.
The wife’s interest being equitable, the assignment of it by the husband, could have passed to the assignee only an equity, subject to the wife’s paramount right to a competent settlement; and, not only is it certain that no portion of the amount of that interest could, therefore, have been coerced in a court of equity from the executor, by either the husband, or'his assignee, without making the wife a party to the suit; but it is altogether probable that, had the assignee brought the suit in his own name, making, as he must have done, the assignor and his wife parties, the whole five hundred and seventy three dollars, eighty nine and a half cents would have been settled on her by the Chancellor, because, the husband being insolvent, such a provision for his wife by the appropriation of her own patrimony — certainly not more than adequate' — would have been clearly and indisputably right. Had the assignee applied for leave to prosecute the suit, for his own exclusive benefit, and to collect the amount of the decree, the Court ought, in the like manner, to have protected the wife. And it is not improbable that this was the reason why the plaintiff did not disclose to the Chancellor, the fact that he was prosecuting the suit for his own use. The fact
As, therefore, the declaration has not averred that the record of the chancery suit showed that the decree was obtained for the assignee’s benefit, or that the Chancellor sanctioned his claim to the amount decreed, but, on the contrary, avers that the executor was directed by the decree to pay the five hundred and seventy three dollars, eighty nines and a half cents to the husband and wife, and, as the record purports,- for their own use, we cannot doubt that it was not only the privilege but the duty of the executor to pay to the husband, or to him and his wife, for their joint benefit, the whole sum decreed against him in their favor. A payment to any other person, without their authority, or at least that of the husband, after the date of the decree, would not have exonerated the executor from the decree, and would have been perfectly gratuitous, and unauthorized by the decree.
It was the executor’s duty to look only to the decree and the record of the suit in which it had been rendered, and he had no right to enquire whether the persons, who were there shown to be his creditors, were beneficially, as well as nominally, entitled to receive the amount decreed to them, or whether, upon a knowledge of extrinsic facts, the plaintiff in this action had a better right in equity, or any right at all. Had the executor refused to pay the money as directed by the decree, he could have been compelled to do so; and we know not by what kind of procedure the assignee could have obtained from him the amount of the decree, without the ■consent of the party to whom he had been directed to
But even if the executor might have had a right to elect to pay the money to the assignee, and to claim the protection of the Chancellor against the husband and wife — still it was not his duty to make such a payment. He had a clear right to execute the decree as rendered, Lee vs. Chambers, 3 J. J. Mar. 506.
Wherefore, it is considered that the judgment of the Circuit Court be affirmed.