Buckner's Adm'r v. Buckner, 120 Ky. 596

Buckner's Adm'r v. Buckner

120 Ky. 596 | Ky. Ct. App. | 1905

Opinion by

Judge O’Rear.

Affirming.

Alex. Buclmer, a resident of Marion county, died intestate in June. Within a few days after his death, and before- another term of the Marion County Court, application was made to the county court for letters of administration upon his estate. Appellee-, Birdie Buckner, applied, c] aiming to be his only child and heir at law. Lucinda Buckner, the mother of the decedent, waived by a writing her right to he appointed, and application was made on behalf of Frank Rice, at the instance of a creditor of the decedent. Birdie Buckner ?s right to qualify was resisted by Lucinda Buckner and Frank Rice-, on the ground that she Was not Alex. Buckner’s daughter, but that she was a bastard child of Alex. Buckner’s divorced wife. The county court rejected Birdie Buckner’s claim to- administer, and appointed Lucinda Buckner and Frank Rice as administrators. Birdie Buckner appealed *599to the circuit court, where, upon the evidence, it was decided that she was the legitimate child of Alex. Buckner, and was consequently entitled to administer upon his estate. From the last-named judgment Lucinda Buckner and Frank Rice prosecute this appeal.

Without detailing the evidence, we deem it sufficient to say on the question of fact that we are convinced that Birdie Buckner was bom to Alex. Buckner’s wife after their marriage, and during their wedlock, and within the usual period of gestation, after he had had opportunity to have begotten her. In that state of case the law’s conclusive presumption is that the offspring is legitimate.

Under the statutes of descent and distribution, there being no widow, the only child of the decedent became his sole distributee. By see. 3896, Ky. Stats., 1903, it is provided: “The court having jurisdiction shall grant administration to the relations of the deceased who apply for the same, preferring the surviving husband or wife, and then such others as are next entitled to distribution, or one or more of them whom the court shall adjudge wjill best manage the estate.” Under this statute the relation first in rank as distributee is entitled as a matter of right to administer upon the decedent’s estate, provided such distributee possesses otherwise legal qualifications to act, as, for example, is a person who- is a resident of the Commonwealth, and of contractual age and capacity. By the succeeding section, if no such person apply for administration at the second county court from the death of the in-, testate, the court may grant administration to a creditor, or to any person in the discretion of the court. The discretion vested by these sections is, first, to select from the distributees, where there are more than one of the same rank or degree of relation, such *600one or more as the court shall judge will best manage the estate. Where, however, there is but one distributee, this discretion can not exist if the distributee makes application before the second county court from the death of the intestate. After that time the court may, in its discretion, grant letters of administration to any other person. Appellee having showta. a legal right to qualify as administratrix of her father’s estate, and being the only person so entitled to qualify, the county court erred in refusing to appoint her.

Wherefore, the judgment 0f the circuit court is affirmed.

Petition by appellant for rehearing overruled.