Pendergest v. Heekin

CHIEF JUSTICE BENNETT

delivered the opinion of the court.

John A. Pendergest died testate. By the terms of his will his wife gets all his property during life or widowhood, remainder to his son; but in case he should die before his mother, and without issue, then she gets the estate absolutely! The testator’s estate devised consisted of a house and lot in the town of Falmouth, not worth exceeding one thousand* dollars. After the death of the testator the widow contracted some debts to the appellees Heekin & Hill, upon which they obtained judgment in the Pendleton Circuit Court. Executions were obtained thereon, and levied upon the house and lot devised. This suit was brought to set aside the levies, and an injrinction to prevent the sale until the court could act was obtained. The executions were levied upon the idea that the *386 debts were created by the testator in. his life-time, and that the property (his homestead) conld be sold subject to the homestead right of the widow and infant children therein; for the debts were not debts due by the testator. Now, according to the decision of this court (see Myers’ Guardian v. Myers’ Administrator, 89 Ky., 442 ) a testator may will his homestead and invest the devisee, though such devisee may be his wife or child, with the title the same as he could do by deed. In such case if the real estate devised is not worth more than one thousand dollars, a.nd if he has a family, the devisee is entitled to a homestead under the provisions of the General Statutes, and if it takes the property devised to make it, it is not subject to his debts made prior thereto, because property acquired by descent or will is not subject to the prior debts of devisee to the extent of a homestead therein, nor is it subject to the debts of the devisee created after the property was thus acquired. In this case the widow is entitled to a homestead in said property, she having a family.

It is, however, arged that as there was a motion to dissolve the injunction, and as it was dissolved, the appellant’s remedy was to apply to have the injunction reinstated, and the remedy can not be reached by apioeal But the facts stated in the petition and amended petition show that the appellants were entitled to have the levy of the executions upon the house and lot quashed, which the court ought to have done; but, instead, it dismissed the petition, and both the dismissal and the dissolution occur in the same judg *387 ment; and as the dismissal of the petition is a -final judgment and appealable, and as the order of dissolution occurs by the same judgment, the proper remedy is to appeal the whole case. Sections 296 and 297 of the Civil Code, that provide for an application to one of the judges of this court to reinstate an injunction that is dissolved upon motion, apply to the dissolution of injunctions upon motion in advance of the rendition of a final judgment in the case. In such case no appeal can be taken from the order of dissolution, because no final judgment has been rendered. Hence the remedy is by motion to' reinstate; but if the injunction is dissolved upon rendering the final judgment in the case, then the remedy is by an appeal of the whole case. But, as said, the court should have quashed the levies of the executions upon the house and lot, and the case is reversed, with directions to quash said levies.