Crenshaw v. Kener

Atkinson, J. We agree with the court that no cause of action was set forth. The petition shows the existence of a valid judgment in favor of Kener as next friend, for the use of his insane mother, for the recovery of certain money claimed to be due for the use of property to which she was entitled for life as dower. While the dower interest in the land was only a life-estate, the interest in the income from the estate in dower during its existence is absolute and belongs to the widow. The dower interest is not lost to the widow by reason of her being insane. The son, as next friend, has no personal interest in the recovery, and, before he will be permitted to receive the money, the court should see to it, if the parties at interest require, that he executes a proper bond. Civil Code, §4843. The objection of the plaintiffs in the present suit, that the next friend has not given bond, is premature. The time to urge that is when the money is to be paid over. Such is [747] not a good ground to avoid pressing the judgment to collection. See Oxford Knitting Mills v. Sutton, ante, 162. It is contended that the next friend and Ms sister, Mrs. Eugenia C. Peavy, who are the heirs at law of Mrs. Kener, are insolvent, and that they are obligated by a guaranty contract to'protect the present plaintiffs against damage which might arise by an assertion of the dower interest, and that unless the money arising from an enforcement of the judgment should be impounded now by the court, the fund will be appropriated by the heirs, and the plaintiffs will suffer irreparable loss thereby. This question also is prematurely raised. These anticipatory heirs could have no interest by inheritance, until the death of their mother. The possibility of subjecting such money as they may inherit from their mother is no ground for delaying or defeating the collection of the judgment. Judgment affirmed. All the Justices concur, except Fish, O. J., absent.