134 Ky. 444 | Ky. Ct. App. | 1909
Opinion op the Court by
— Affirming.
This appeal presents for review a judgment of the Madison Circuit Court, whereby appellee, J. J. Embry, as administrator of the estate of Sallie K. Bennett, deceased, recovered of the appellant, H. J. Bennett, upon a note, $1,838.44, with interest from March
(1) That the decedent nor her estate was indebted to any person in any sum at the time of appellee’s appointment and qualification as administrator, and that there was no occasion for his appointment or qualification; (2) that the $1,000 for which appellant executed to the decedent the original note, with her knowledge and consent, went into his hands immediately following its receipt by her, was never out of his possession before her death, and at her death the same, with its accumulated interest and all other personal property of the decedent, became, by virtue of the statute in force at the time of his marriage to the decedent, his property; (3) that at the death of the decedent her brothers and sisters, without right, took possession of, and divided among themselves, a large amount of her personal property, consisting of furniture, silverware, and other articles, which, under the law, belonged to him as the surviving husband, and were of the value of $1,000, and that he was
As to the first ground of defense, it may be said it is patent from the statements of both the petition and answer that the decedent died the owner of considerable personal estate, in addition to the note in controversy, and also patent from the averments of the petition that appellee, the administrator, and his wife are creditors of the estate, and the latter a sistei and heir at law of the decedent. The heirship is "not controverted by the answer, unless it can be said that the mere allegation of the answer that appelpellant, at the death of decedent, became entitled as the surviving husband to her personal estate amounts to a denial of that fact, which we do not think can be so construed. Nor do we think the further general averment of the answer that “Sallie K. Bennett, nor her estate, were indebted to any person for any sum whatever at the date of the plaintiff’s qualification as administrator” is tantamount to a specific denial of the statement in the petition that appellee and his wife are creditors of the estate. We are of opinion that the pleadings make a sufficient showing of the facts (1) that there were debts against the decedent’? estate; (2) that she left a considerable personal estate to be administered. An action for the recovery of personal property left by a decedent, or for the ri-covery of money due the decedent’s estate,, must be brought by the personal representative. If, however, the personal representative refuse to bring the action, it may be brought by a creditor, or heir
“The personal property of an intestate does not pass to or vest in the heir at law, but in the personal representative appointed as provided by law. If suit be necessary for the recovery of a demand due the estate of an intestate, it must be brought by the personal representative, but if he fail to sue the debtor, and refuse on demand of the heir at law to do so, the latter may bring the action by making the administrator a defendant. The same is true as to guardian and ward, trustee and cestui que trust. This doctrine is supported by numerous authorities.” Brunk v. Means, 11 B. Mon. 216; McChord v. Fisher’s Heirs, 33 B. Mon. 194; Roberts’ Adm’r v. Eales, 10 Ky. Law Rep. 360; Loyd v. Loyd, 46 S. W. 485, 20 Ky. Law Rep. 347.
A further question is, had the county court the legal right to appoint appellee administrator of the decedent’s estate, and to permit him to qualify as such? The death of the decedent occurred, as previously stated, June 18, 1906. Appellee’s appointment
“The court having jurisdiction shall grant administration to the relations of deceased who apply for same, preferring the surviving husband or wife, and then such others as are next entitled to distribution, or one or more of them who the court shall judge will best manage the estate. ” Section 3897 (section 3920) provides:
“If no such person (as indicated in section 3896) 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. * * *” As neither the surviving husband nor other person having a better right than appellee had applied for appointment as administrator of the decedent’s estate, his appointment was properly made by the county court. Indeed the court might. legally have appointed him administrator at any time following the second county court after the death of the decedent. It was not even necessary that he should have been a creditor of the estate to entitle him to the appointment, though the fact that he sustained that relation added to his right to receive it, after the failure of the surviving husband and relations of the decedent to qualify, over one not a creditor of the estate.
The law gives no support to appellant’s claim that, upon the death of his wife, he became entitled to the note sued on or the whole of its proceeds. It is true the note is a renewal of another executed by him to
Appellant relies upon the several opinions of this court in which it was held that, where land was acquired by the wife prior to the passage of the act of 1894, in which the husband took an estate for life as tenant by the curtesy, the act of 1894 could not be made to operate retrospectively, so as to divest the husband of his vested rights in his wife’s real estate. Rose v. Rose, 104 Ky. 52, 46 S. W. 524, 20 Ky. Law Rep. 417, 41 L. R. A. 353, 84 Am; St. Rep. 430; Mitchell v. Violett, 104 Ky. 77, 47 S. W. 195, 20 Ky. Law Rep. 378.
That rule can not, however, apply to this case, as the note in question was the separate estate or property of appellant’s wife, in which he never acquired any vested right or interest prior to her death, or before the enactment of the statute of March 15,1894. Consequently whatever interest he took therein upon the death of the wife was controlled by that act which gave him only one-half of the wife’s surplus personal estate. It is true that, when the $1,000 for which appellant executed the original note was received by her as an heir at law of her mother, it became in law her general estate, and if appellant had then, as he might have done by virtue of his marital rights, appropriated it by reducing it to his posses
“Though a stranger’s conveyance,of property, or covenant to pay money to a married woman, or to a trustee for her, in order to give her a separate use, must contain words indicating such intention, it seems to be well settled that such words are unnecessary in a husband’s conveyance or covenant.” Graines’ Adm’r v. Poor, 3 Metc. 503, 79 Am. Dec. 559; Ward v. Crotty, 4 Metc. 59.
As appellant did not, prior to the passage of the act of March 15,1894, acquire a vested interest in the note of $1,000, and could not have done so in the renewal, he was liable for the whole thereof at the time of its renewal, March 1, 1899, then amounting to $1,-838.44, and such liability continued on the renewal until it was merged in the judgment. And while under the act of March 15, 1894, he is entitled to one-half of the surplus personal estate left by his wife, including the note in controversy, the amount of such
This was not an action to settle the decedent’s estate. Consequently the administrator was not required to make a showing of the assets or indebtedness of the estate. So we are not called upon to say whether, if this were an action in equity to settle the estate, appellant should be allowed to retain half or any part of the note sued on as his share of his wife’s estate, or credited with same, as against the administrator, on whatever judgment the latter might be entitled to recover. It is the policy and intent of the statutes of this state that the property of decedents left undisposed of at death shall, for the purpose of collecting the-same, ascertaining and protecting the rights of creditors and heirs, and properly transmitting the title of record, be subjected to the process of administration. This action contains no earmarks that would seem to indicate any departure from the policy referred to; its apparent purpose being to collect the assets of the decedent’s estate that its debts may be paid, and the surplus distributed to appellant and the Jieirs at law of the decedent, as by statute required.