Kendall v. Mondell

Stone, J., delivered the opinion of the Court. Miss Joanna Binkley died in 1885, intestate and without children, leaving a sister, Mrs. Kendall, and the children of a deceased sister, Mrs. Mondell, her heirs-at-law. Miss Binkley was seized and possessed at the time of her death of certain lands. These lands were sold under a decree for the purpose of division among her heirs, and the proceeds of sale brought into Court., The auditor divided the fund into two equal portions, giving one-half to Mrs. Kendall and the other half to the children of Mrs. Mon-dell.

Mrs. Kendall excepted to this audit, and her exceptions being overruled she has appealed to this Court. The ground of her exception is this: Miss Binkley in her life-time obtained a judgment against her sister, Mrs. Mondell, which is still unpaid, and Mrs. Kendall insists that this judgment is to he paid out of the share of Mrs. Mon-dell’s children in this land, as she, Mrs. Mondell, left no property sufficient to pay it. The proposition of the appellant broadly stated, is, that the children of Mrs. Mondell must pay the debt due by their mother to their aunt before they, the children, can get the property they inherited from the latter. The authority for this is supposed to be found in sec. 27 of Art. 47, of the Code, which provides that if a father or mother he dead, the children of such father or mother shall receive the same share of the estate as the father or mother, if living, would have been entitled to and no more.

It is insisted that if Mrs. Mondell were living, the judgment she owed her sister Miss Binkley, would have to be paid out of the lands inherited from her, and if not