134 Ky. 230 | Ky. Ct. App. | 1909
Opinion op the Court by
— Reversing.
Rebecca Powers, a resident of Kenton county, Ky., died in tbe month of January, 1908, leaving a last will and testament. Appellant, John Gr. Adams, was nominated the executor therein. He produced the will, and it was duly proved and probated at the February term, 1908, of the Kenton county court. For some reason appellant failed to qualify as executor at that time. At the April term, 1908, of the Kenton county court, J. C. Eads, a brother of the testatrix and who claimed to be a creditor of the estate -appeared and moved the court for the appointment -of an administrator with the will annexed. Thereupon the court entered an order appointing appellee Joseph Readnour such administrator with the will annexed. Readnour accepted the trust, executed bond, took the required oath, and undertook the administration of the estate. On May 8, 1908, appellant moved the Kenton county court for a rule against the appellee to show cause why he should not be removed, and appellant be permitted to qualify as executor of decedent’s estate. The rule was granted and in due time served upon appellant, who at the designated time .appeared in person and by counsel and filed his written response to the rule, setting forth his appointment and qualification and the steps taken by him, to settle the estate. The court adjudged the response insufficient, and entered an order removing appellee as administrator with the will annexed, and permit
For appellant it is insisted that there is nothing in the statutes upon the question, and that under the common law it is necessary to give notice to the nominated executor of cite him to appear and show cause why he should not accept or decline the trust before the county court has the power to appoint an administrator with the will annexed. For appellee it is contended that the matter is regulated by the Kentucky Statutes, and that they authorize the action of the county court in appointing appellee as administrator with the will annexed.
The sections of the statutes relied upon are as follows:
“Sec. 3891. If there is no executor appointed by the will, or if all the executors therein named die, or refuse the executorship, or fail to give bond as required by law, which shall amount to such refusal, the court may grant administration, with the will annexed, to the person who would have been entitled to administration if there had been no will.”
“Sec. 3897. If no such person apply for administration at the second county court from the death of an intestate the court may grant administration to a creditor, or to any other person, in the discretion of the court. If a will shall afterward be produced and proved, the administration shall cease, and the court may proceed to grant a certificate of the probate thereof, or, in the proper case, letters of administration, with the will annexed.” Russell’s St. Sec. 3928.
It will be observed that, under section 3891, the court has power to grant administration only where no executor is appointed by the will, or in cases where all the executors die, or refuse the executorship, or fail to give bond as required by law. In any of these cases, the court is authorized to appoint as administrator with the will annexed, the person who would have been entitled to administration if there had been no will. Section 3896 simply regulates the question of precedence. Section 3897 authorizes the granting of letters of administration to a creditor or to some other person in the discretion of the court in the event that none of the persons mentioned in section 3896 apply. It further provides that if a will shall afterwards be produced and proved, the administration shall cease and the county court may grant a certificate of probate thereof, or, in the proper case, letters of administration with the will an
In Redfield’s Law of Surrogate’s Courts, p. 140, we find the following: “Of course, any person nominated as executor in a will may refuse to enter upon the duties of the office. He cannot be compelled to take a grant of letters, but, before letters will be issued to any other person than the one named executor, he must formally renounce his appointment, or
For reasons satisfactory to himself, the testator nominates an executor. He may prefer such executor because of his confidence in him or his knowledge of
For these reasons, it follows that the judgment of the circuit court is erroneous, and should be reversed; and it is so ordered.