Bannon v. Lloyd

Robinson, J., delivered the opinion of the Court. The real estate of Thomas Fawcett was sold for the payment of debts, and this controversy arises upon the distribution of the proceeds of sale among his children and his creditors. He died leaving nine children : one of these, Abraham, subsequently died, leaving five children, and a daughter Hannah Green, who also died, leaving six children. The amount to bo distributed is $1,235.11, and but for the claims of creditors, each of the surviving children would get the one-ninth, and each of the children of Abraham, the one-fifth of one-ninth, and each of the children of Hannah Green the one-sixth of one-ninth.

Quite a number of claims harm been filed, to all of which the Statute of Limitations has been pleaded by one or more of the heirs. The only claims, however, necessary to be considered, are: 1st. The Brewer decree, and 2nd. The Simms’ judgment.

The Brewer decree was obtained August 30th, 1861, and filed December 28th, 1882. To this decree fiv'e of the surviving children of the intestate, all the children of the deceased son Abraham, and two of the children of the deceased daughter Hannah Green plead the Statute of Limitations. As the plea of the Statute, however, enures only to the benefit of those who plead it, this decree being the oldest lien is entitled to the shares of Albert C. and Benjamin Fawcett, two of the children, and also to the shares of Martha J. Waring, Manoah Green, Lydia Green, and Helen Green, children of Hannah, who do not plead the ⁵⁰ Statute. As to the rest of the children and grandchildren, the decree is barred by the Statute.

The Simms’ judgment was rendered the 12th of November, 1860, and filed February 4th, 1875. To this judgment all the heirs, except the five children of Abraham, and two of the children of Hannah Green plead the Statute. It being the next oldest lien, it is entitled to the shares of the five children of Abraham Fawcett and Fletcher Green and Eliza Green, who do not plead the Statute. The Towner judgment not being barred by limitations, must be paid in full.

All the other claims being barred, the balance of the fund must be distributed among the five surviving