E. Martin vs. W. Martin, &c. the places, provided that it be shown that John Martin's heirs paid their portion of this; but if not, then she will be entitled to land for this outlay, as Elijah paid nothing on it. She will also be entitled to recover for William's outlay in this farm, whether for Mrs. Stockdell's interest, or for the amount otherwise paid for which she may not get land. Elijah will be entitled to his tenth inherited, and as purchaser from his sisters, Jane McClanahan and Martha Martin, and brother Washington Martin, and his fractional interest of sixty-seven dollars in Mrs. Stockdell's interest in the old homestead; and if the resulting trust, nor created trust, can be enforced as to the balance of her interest, he will also be entitled to it, answering for William's outlay of two hundred and thirty-three dollars; and then for that part of William's outlay otherwise, so far as he gets land by reason thereof, as he may be held responsible therefor. John Martin's heirs will be entitled to his tenth inherited, and his forty-one dollars paid to Hugh Martin towards his interest, and such other portion of the forty-one dollars paid by their mother and sister Jane McClanahan as they may manifest; and Elijah will also be interested in the land as to so much of these latter two sums as he may manifest an interest in. Ann D. Martin will be entitled to all the interest of her brother William in and to the land, and any judgment for money which may be rendered which he would be entitled to but for his said assignment to her. On a return of the case, the court will again refer it to a master commissioner to ascertain the various and complicated interest of these parties, upon the basis of this opinion, with leave to either party to introduce evidence to establish and elucidate any point of difficulty Harris vs. Dale & Co. herein suggested, and to report the proof, with the interest of each in the land, and a complete balance sheet; so that, after final adjudication, the court can, through a commissioner, have the land actually partitioned accordingly. Wherefore, the judgment is reversed on the original and cross-appeals, without any judgment for costs to either party in this court; but all the costs in the court below subject to the final determination of the case. CASE 9-PETITION EQUITY-APRIL 19. Harris vs. Dale & Co. APPEAL FROM BOYD CIRCUIT COURT. 1. For supplies furnished a hotel, of which she was the owner and one of the proprietors, a married woman executed her notes, which were not signed by her husband. The judgment of the circuit court, subjecting the hotel to sale to pay such notes, is reversed. The averments of the petition with reference to her business and estate were not such as to authorize proceedings against her as a married woman trading as a feme sole; nor did it appear whether she kept the hotel as a business of profit, or only as a means of support. 2. Supplies used in keeping a hotel as a business of profit, and not a mere means of support, cannot be regarded as necessaries furnished for the use of a family, within the meaning of the statute. (See sec. 1, art. 2, chap. 47, 2 Stanton, 8.) 3. Necessaries.-This term is one of relative signification, and should not generally be restricted in its application to such things merely, as are proper and requisite for sustenance, but often includes much more, depending on the circumstances, situation, and social position of the parties. Harris vs. Dale & Co. 4. The estate of a married woman is not liable for debts created by her during coverture, even for necessaries, unless the same are evidenced by writing signed by her and her husband. GEO. E. ROE, CITED For Appellant, 17 B. Mon., 555; Burgen, &c., vs. Forsythe. 2 Met., 522; Toombs vs. Stone. 3 Met., 355-6; Marshall vs. Miller. JUDGE HARDIN DELIVERED THE OPINION OF THE COURT: This case seems to have been tried on the admission of the pleadings and the notes in controversy. No other exhibits were filed, nor was any testimony taken. The allegations of the petition, which are not controverted by the appellant, Louisa P. Harris, import that she was one of the proprietors and keepers of the "St. Cloud Hotel," in Catlettsburg, and executed the notes for supplies purchased to be used in the business of keeping the hotel, which she owned in her own right; and that she was the wife of her co-defendant, K. N. Harris, when the suit was brought, the original petition in which appears to have been filed on the day of the date of one of the notes. The averments of the petition with reference to her business and estate are not such as to authorize proceedings against her as a married woman trading as a feme sole; nor can it be determined from them whether she kept the hotel as a business of profit or only as a means of support. The only question to be determined, therefore, seems to be, whether the plea of coverture set up in her answer is available; and this depends on the proper construction of the provision in the first section of article two of chapter forty-seven of the Revised Statutes, which declares Harris vs. Dale & Co. that the estate of a married woman shall be liable for debts contracted by her after marriage "on account of necessaries for herself or any member of her family, her husband included, as shall be evidenced by writing, signed by her and her husband." Although the term necessaries is one of relative signification, and should not generally be restricted in its application to such things merely as are proper and requsite for sustenance, but often includes much more, depending on the circumstances, situation, and social position of the parties, we are not of the opinion that supplies used in keeping a hotel as a business of profit, and not a mere means of support, can be regarded as necessaries furnished for the use of a family within the meaning of the statute. But the contracts, as evidenced by the notes in controversy, are liable to another and more radical objection. K. N. Harris, the husband of the appellant, did not unite with her in the execution of said notes, which were signed by her and R. P. Harris alone. It seems to this court, therefore, as the case is now presented by the record, that the judgment is erroneous, and must be reversed. On the return of the cause, if reasonable grounds are shown for allowing further preparation, the court should permit it to be made; otherwise, dismiss the petition. Wherefore, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Cook vs. Burton's adm'r. CASE 10-PETITION ORDINARY-APRIL 20. Cook vs. Burton's adm'r. APPEAL FROM MERCER CIRCUIT COURT. 1. 2. 3. A widow, having funds of her deceased husband in her possession, is bound to surrender them to his administrator. If she converts or refuses to surrender them, or commits spoliation, or smuggles his estate after his death, she is liable, and, in an action by the administrator against her, she cannot claim exoneration on account of her distributive interest. An administrator has the legal right to take into his possession all the assets of the intestate, and a distributee has no right to convert any portion of them without his consent, or to withhold from his administration. A party introducing testimony by his own witness, in answer to his own interrogatory without objection, cannot, afterwards, object to its illegality. 4. Declarations of husband or wife, either in the presence or absence of the other, are held to be competent evidence for the other party, in a controversy between the husband's administrator and his widow, in reference to funds of the husband claimed to be in possession of his wife at his death. J. B. & P. B. THOMPSON, PHIL. B. THOMPSON, W. A. HOOE, and NAT. GAITHER, CITED For Appellant, 6 Rich., 521; Powell vs. Keefe. Revised Statutes, "Executors and Administrators," secs. 17, 18. 1 Mon., 40; Bell vs. Layman. 18 Penn. (6 Harris); Gamber vs. Gamber. |