138 Ky. 426 | Ky. Ct. App. | 1910
Opinion op the Court by
Affirming.
The appellant, Lucy Betty, an infant, claiming to be the owner and entitled to the possession of a 3% acre tract of land in Laurel county, together with R. M. Jackson, her statutory guardian, brought this action in the court below to recover it from the appellees Lucie Petrie and Sarah Craft, who were alleged to be wrongfully in the possession thereof under a false claim of title. Appellants also sought to recover of appellees $300 damages for being deprived of the possession and use of the land by appellees’ alleged detention thereof. Appellees by answer denied that the appellant owned the land or had ever done so, or that she or her guardian were entitled to to the possession thereof. It was alleged in the
“This is the last will and testament of Ruth Hardin. First, I desire that all my debts and funeral expenses be paid; the remainder of my real estate and personal property of all kinds I desire to be sold and ■the'proceeds used for the benefit and use of Lucy Brown, a child of’Julia Brown. To carry out these instructions, T desire that R. M. Jackson be appointed my administrator and guardian for the said child. I desire that the interest and rents of said property shall be used for the maintenance and education of the child and that none of the principal shall be used unless it shall be absolutely necessary, and at the age of twenty-one all of said property remaining shall be turned over to the said child. April 17th, 1899. her
“Ruth S Hardin.
“Witness: mark
“R. T. Ramsey,
“Anna. Coeeee,"
“ Carilina. Tinsley. ”
The answer contained the further averments that R. M. Jackson, appointed executor by the will and testamentary guardian of the infant devisee, Lucy
One is that it was not made to appear that the will of Ruth Hardin was admitted to probate. This contention is without force. It appears from the record, and is conceded, that the testatrix died in April, 1899, and that her will, which was made April 17, 1899, and only a few days before her death, was at the regular May term, 1899, of the Laurel county court produced to the court by R. M. Jackson, the person named therein as executor, but who declined to qualify. While no order of the county court of the May term showing what steps were taken to prove the authenticity or execution of the instrument was produced, the record furnishes an order of the court entered at
If the evidence was, as we have held, sufficient to establish the probate of the will, the will itself must be accepted as evidence in determining the question of title involved in this case; for section 4852, Ky. St., provides: “No will shall be received in evidence until it has been allowed and admitted to record by the county court; and its probate before such court shall be conclusive, except as to the jurisdiction of the court, until the same is superseded or annulled.” But after all we do not think appellants are in a position to object to the will or the proof of its probate; for the reason that their claim of title to the land in controversy is made under and by virtue of the will. It is not contended that the appellant Lucy Betty is an heir at law of Ruth Hardin, so, if the will were declared invalid, there would certainly be no ground upon which to rest her claim. In view of this fact, it it singular that she should attack the will. The petition sets out the execution of the will, and alleges that it was duly admitted to probate, and rests the appellant Betty’s claim to the land upon it, but in the reply it is denied that the will was ever admitted to probate. The two pleadings are not only inconsistent, but so contradictory that it would be but fair to hold appellant to the averments of the petition, upon the theory that the denials of the reply as to the will should not be considered without a withdrawal of the contradictory averments of the petition. However, further discussion of the pleadings is unnecessary in
It is also contended by appellants that P. F. Stallings was not appointed, and did not qualify, as administrator with the will annexed of Ruth Hardin’s estate, but as administrator as in case of no will. This position is wholly untenable. The order of the county court appointing Stallings administrator and showing his qualification does not, it is true, contain the words, “with the will annexed,” but the bond executed by him and accepted by the court does contain those words, and shows that it was given by him as administrator with the will annexed, and such was the legal effect of his. appointment and qualification, even if it had not been so expressed in the bond. The will was in existence and had been duly probated. This being true, the estate devised had to be administered according to the will, and not as in the case of intestacy.
It is likewise contended by appellants that the sale of the land by the administrator was unauthorized by the will. The will upon its face refutes this claim, for it expressly directs a sale of all the real and personal estate of the testatrix by the person designated therein as “administrator,” that its proceeds may be used for the benefit of Lucy Brown, then and yet an infant, whose name by her marriage has been changed to Lucy Betty. The further provision directing that the interest and rents of the property be used for the maintenance and education of the devisee does not abrogate the direction to the administrator to sell it. By the use of the word “rents” the testatrix merely meant that, so long as the real estate remained unsold, the income arising therefrom, as well as any in
It is also insisted for appellants that the judgment of the circuit court construing the will and authorizing the sale of the land by the administrator was and is void as well as the order of the court confirming the sale and directing a conveyance of the land to the purchaser by the commissioner, and that the deed from the latter passed no title to the purchaser. This contention is manifestly untenable. The judgment was unnecessary, as it merely directed the administrator to do what he was authorized by the will to accomplish, and, under that instrument, he might also have conveyed the land by deed after selling it, but he could also convey it through a commissioner of the court’s appointment, and therefore -the deed made by the latter passed a good title to the purchaser.
We find no reason for sustaining appellant’s further complaint that Lucy Betty was not legally summoned in the action brought by the administrator. It appears from the record and is admitted by her that she was an infant 10 years of age when the testatrix died, and, as the action by the administrator was brought the year after the latter’s death, the infant could not then have been more than 11 years of age, certainly not over 14. It is further admitted that she had at that time no statutory guardian, and that she
The question whether the appellee Lucy Petrie or her husband should have received .a deed for the land from Sarah Craft does not concern .the appellants. It is manifest that they have not established their claim to the land, and if,' as asserted in the brief of their counsel, the administrator with the will annexed has never accounted to the appellant Lucy Betty, or her guardian, for the proceeds of the property of the testatrix received by him, their remedy lies in a right of action against the administrator with the will annexed and the surety in his bond.
As the judgment rendered by the circuit court was in all respects correct, the same is affirmed.