Duncan research files of
Warren Co. KY Circuit Court Suits; index 1798-1869 (FHL film 467,956)
Unable to find these suits on film by these numbers; cross-index very faint
Duncan, James, 1800?, adv. Guy Phelps, Reel #2, Suit 47
Duncan, Prior, 1810, vs. James Reed, Reel #7, Suit 148
Duncan, Martin, 1828, vs. Thomas Appleton, Reel 26, Suit 91 (indexed as "Marshall")
Duncan, Edmund, 1835 (not copied)
Warren Co. KY Record Books (no overall index)
Land law cases in semi-alphabetic order by year, not looked at (FHL film 419,784)
County Court Record Book 1828-1830 (FHL film 242,928)
Pg.7: 25 May 1828, Martin Duncan pltf vs. Thomas Appleton deft, in case - continued by counsel.
Pg.55: 27 May 1828, same, continued
Pg.92: 25 Aug. 1828, same, death of plaintiff suggested by council, case abates.
Warren Co. KY Court Records (No correlation to Circuit Court Suit index)
Common Law Suits of Circuit Court & Court of Common Pleas, #1-256 1796-1802 - no index (FHL film 419,759)
Equity Records to #219, 1820 - has Reel 157 #4511-1/2 1896 (FHL film 479,848 part 2?)
Equity Suits by Number and year on film, 1820-1851, number #2085 is in 1851.
Equity Judgements, 1796-1860; C-D Ser. 1 (FHL film 242,941); D-F Series 1 (FHL film 242,942) etc. -- not the Circuit Court; these are the loose papers that are also on FHL film 273,013; has copy of original will of Martin Duncan and consent of Robert Duncan for marriage of his daughter Susanna to James Jones on frame 1351, also on FHL film 164,004.
"Reports of selected civil and criminal cases decided in the Court of Appeals of Kentucky" cases decided at winter term 1863 and summer and winter terms 1864; by Alvin Duvall, Vol.I; Kentucky Reports, Vol.62, pgs.318 to 321 (California State Law Library, Sacramento, 2/2004)
PROCTOR and wife vs. DUNCAN, &c; Court of Appeals of Kentucky; 62 Ky. 318; 1 Duv. 318; February 11, 1864, Decided.
Case 39 - Petition Equity - Feb. 11.
APPEAL from Warren Equity and Criminal Court.
JUDGE ROBERTSON delivered the opinion of the Court:
The only question in this case involves the interpretation of the will of Edmund Duncan, first published in the year 1854, and modified by a codicil in 1857.
The testator had been twice married, and left children by each wife, the second of whom, together with the children, survived him. Contemplating their continued co-residence as one family, just as if he had not died, he made the following provision in the body of his will as first published: "I desire that my wife, Sarah P. Duncan, remain in possession of and upon my farm during her widowhood, and that she keep with her all of my unmarried children until they become of age or marry, and that such of them as are of age, or become of age and not married, shall all be allowed to remain as members of the family and free of charge; and for the purpose of the better enabling my said wife to keep together my said family, educate my younger children, and the comfortable support of herself and family, I allow my said wife, with my executors, to have the use and benefit of all my estate, both real and personal, to use, buy, and sell, with the exception of the land (the land they shall not sell), and manage as they may think proper." By another provision he gave to his wife some young negroes and personalty, in the event of her marriage, and directed his executors, after satisfying that contingent bequest, to manage the residue of his estate as they might think best for his children, until the youngest should attain majority or marry, and then to sell the land and other estate, or otherwise dispose of it so as to effectuate "an equitable" distribution of the proceeds among all his children.
By the codicil he devised the land to the children of his first wife, through whom he had acquired it, and added: "I then wish the balance of my estate to be disposed of as in this foregoing will."
The appellants, Phineas H. Proctor and his wife, Virginia, who was a child of the first marriage, claiming for all the children of that marriage the right to the immediate possession of the land on which the widow and other children were living under the will, brought this suit against them for recovering possession. On an issue as to the respective rights of the parties, the circuit court dismissed the petition, being of the opinion that the widow and unmarried children have a right to retain the possession during her widowhood, or, in any event, until the youngest child shall marry. And this court, concurring in that opinion, approves that judgment.
The testator's leading purpose was the co-habitancy of his widow and unmarried children, as one family, on his homestead land; and, to secure that end, and provide for comfortable maintenance and proper education, he dedicated his whole estate to their use and enjoyment. And looking to the contingency of his wife's marriage or death, when, the family being dispersed, a division of the estate among his children would become necessary and proper, he directed that then the land should be sold and the proceeds of the entire estate equally distributed among all his children, without discrimination between those of the first and those of the second marriage. If the codicil can, consistently, be so construed as to harmonize with this all pervading purpose, and these provident and necessary arrangements for the certain effectuation of it, the whole will may be harmonized, and all its provisions may have their full effect according to the spirit and context. And this seems to this court to be no difficult task.
We are not allowed to presume that the testator intended to change or frustrate the entire purpose so tenderly manifested towards his widow and unmarried children in the body of his will, and which was its staple and very soul. But this he has certainly done, if he intended by the codicil that the children of his first wife should take the homestead immediately after his death, and then have a right to turn his widow and infant children out of doors without a home, or any other provision for their comfort or maintenance. Had he so intended, he would surely have been more specific in expressing that intent, and would also have made some other substituted provision for them. The alternative devise, in the event of his widow's marriage, makes adequate provision for her on such marriage, and, with that exception, continues the rightful use of the land and of all other property not thus contingently bequeathed to her by the children under the curation of the executors, until the youngest child should marry or attain majority. But, as long as she shall choose to remain unmarried, if, in the meantime, the codicil shall take from her the land, as subservient to which as the home of herself and children as one family they might use all of the estate, then, not only would the purpose of that entire provision be defeated, but they all might be left destitute during her celibacy, without any legatory provision made for them by the testator. Such an unnatural and suicidal effect would alone be sufficient to prove conclusively that the codicil was not so understood or intended by him.
An essentially different purpose in the codicil is perfectly consistent with the body of the will as unchanged by it, except as to the ultimate disposition of the land. The will, as first published, directed a sale of the land at the final division of his estate, and an equal distribution of the proceeds among all his children; and, the testator afterwards changing his mind as to the ultimate destination of the land, and as to that only, determined to give it specifically and exclusively to the children of his first wife, because their mother added it to his estate; and in thus giving it, he says: "The balance of my estate to be disposed of as directed in the foregoing will," that is, when, according to the body of the will, the estate was to be distributed, all of it, except the land, should be disposed of according to the provisions thereof; but that then the land, instead of being sold, and the proceeds distributed among all the children, should go in kind to the children only of the first wife. This, as we think, is the palpable and only consistent construction of the codicil; and, according to this interpretation, every provision in the whole will will be consistent, and may be effectuated. There is no conflict between the codicil and the general provision for the widow and children -- the latter being a particular and limited interest in the whole estate, and the former a remainder in fee in the land only.
The devisees in fee have, therefore, no right to the possession of the land until after the expiration of the particular estate.
Wherefore, the judgment is affirmed.
"Reports of selected civil and criminal cases decided in the Court of Appeals of Kentucky" cases decided at summer and winter terms 1871; by W.P.D. Bush, Vol.VIII; Kentucky Reports, Vol.71, pgs.665 to 667 (California State Law Library, Sacramento, 2/2004)
HOBSON, &c. v. HOBSON'S executor; Court of Appeals of Kentucky; 71 Ky. 665; 8 Bush 665; April 19, 1871, Decided.
Case 44 - Petition Equity - April 19.
APPEAL from Warren Circuit Court.
JUDGE HARDIN delivered the opinion of the Court.
On the first day of January, 1861, William J. Hobson executed and delivered his promissory note to Jonathan Hobson for two thousand dollars, payable six months thereafter, with interest from date; and at the same time, and for the purpose of securing the payment of said debt, the obligor, with his wife, Harriet A. Hobson, made, acknowledged, and delivered to Jonathan Hobson their joint deed of mortgage of certain real and personal estate owned by the female grantor as a devisee of Edmund Duncan, deceased.
The mortgagee having died, J. R. Underwood, his executor, brought this suit, seeking a foreclosure of the mortgage, on the 6th day of January, 1869.
Said Harriet A. Hobson not having united in the note, and her husband being discharged therefrom in bankruptcy, the principal question presented by the defense was whether, as the execution of the mortgage was in effect an act on the part of Mrs. Hobson for the purpose of rendering her property a security for the debt of her husband, the mortgage was or not of that class of obligations or contracts executed by sureties which, as to them, are discharged after the lapse of seven years from the accrual of the cause of action thereon, by section 14 of chapter 97 of the Revised Statutes. The court below, it appears, held the defense unavailable, and rendered a judgment providing for a foreclosure of the mortgage; and this appeal is prosecuted for a reversal of that judgment.
The right of a married woman, under our statutes regulating conveyances, to alienate or convey her general estate, even by mortgage to secure the prior debts of her husband, is now too well settled to admit of a doubt. (Smith, &c. v. Wilson, 59 Ky. 235, 2 Met. 235; Johnson v. Ferguson, ibid. 503; Sharp's administrator v. Proctor's administrator, &c., 5 Bush 396.)
But, conceding this, it is insisted for the appellee that although Mrs. Hobson was not a co-obligor with her husband in the note to Jonathan Hobson, her attitude was nevertheless that of a surety for him within the meaning of the statute to which we have referred concerning sureties and co-obligors. This, in our opinion, involves a misapprehension of the scope and legislative intention of the statute, which is as follows: "A surety in any obligation or contract, other than those provided for in the next two preceding sections, shall be discharged from liability thereon when seven years shall have elapsed without suit thereon, after the cause of action accrued."
We know that the terms surety and security are sometimes used as synonymous, and it may be admitted as true that a bond or obligation with surety is a security, for the latter term includes it, as well as mortgages, pledges, or whatever else may be given, conveyed, or deposited to secure the payment of a debt or the performance of a contract. But it is manifest that the rights and obligations pertaining to the latter kinds of securities are essentially different from those which are acquired and incurred by the act of a party in becoming the surety of another in an ordinary bond or obligation. That description of security is clearly comprehended by the provision of the statute referred to, both by the apt and appropriate language used, and the connection of the section with other provisions of the same chapter relating to sureties and co-obligors. But we can not conclude that the legislature intended by the use of the word surety that the limitation it provided should be so applied as to affect the rights of creditors holding mortgages or pledges made or created according to laws governing such securities instead of personal security for their debts.
The judgment is therefore affirmed.
"Kentucky Opinions containing unreported opinions of the Court of Appeals" June 11, 1872, to June 16, 1873, by J. Morgan Chinn, Ex-Clerk, Vol.6; Kentucky Opinions, Vol.6, pgs.33 to 34 (California State Law Library, Sacramento, 2/2004)
JAMES D. DUNCAN, etc., v. LUTHER CARPENTER, etc; Court of Appeals of Kentucky; 6 Ky. Op. 33; October 14, 1872, Decided.
APPEAL from Warren Circuit Court.
Opinion by Judge Hardin:
As to the main question arising on the original appeal, whether or not the first sets of Edmund Duncan's children were properly held accountable for the value of the land devised to them in the second codicil to the will, we are of the opinion that whether the terms of the will are such as to devise the whole estate or not, within the meaning of the 17th section of chapter 30, Revised Statutes, we are of the opinion from the entire will, that the testator in making the devise of the land in the said second codicil, did not intend, further than may have been unavoidably necessary to alter his previously expressed purpose of effectuating "an equitable" distribution of his estate among all his children.
And that he meant by this an equal distribution, as nearly as practicable, including both the land derived by his first wife, and the slaves given to the younger class of children by Margaret Bakey (after conferring on the family remaining at the homestead particular advantages), seems to be reasonably certain from his failure to relieve the second class of children of the previous charge of the slaves to them, and the expression of the wish, in the clause devising the land, that the balance of his estate be disposed of as provided in his "foregoing will."
Upon the cross appeal, we concur with the court below that the devisees of said slaves are estopped from objecting to being charged with them by their acceptance of the provisions of the will beneficial to them. And we perceive no error in the judgment with reference either to the land or slaves as to the amounts charged therefor, or the time of charging those amounts. Nor is there, in our opinion, any available error in the judgment.
Wherefore the judgment is affirmed, both on the appeal and cross-appeal.
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