124 Ky. 563 | Ky. Ct. App. | 1907
OlNION OF THE COURT BY
ReveOTSing.
In 1882, J. W. Gregory, who was then the sole executor of the estate of Francis Clark, deceased, deposited in the Farmers’ National Bank of Richmond, Ky., the sum of $500. Afterwards Gregory died, and W. O. Goodloe was appointed and qualified as his administrator. In 1884 Goodloe, as administrator, drew his check on the hank for the sum deposited therein to the credit of his decedent as executor, and the same was paid over to him. Subsequently, in 1904, appellant, W. D. Gregory, was appointed and qualified as administrator de bonis non with the will annexed of Francis Clark, Sr., deceased, and, having demanded of the bank the payment of the $500 theretofore deposited by J. W. Gregory as exeecutor of the e'state of his decedent, and payment being refused, he instituted this action. The court overruled a general demurrer of the hank to the petition. Thereupon it filed an answer, controverting some of the allegations of the petition, and pleading, in the second paragraph, the payment of the sum in dispute by W. O. Goodloe, administrator of the estate of J. W. Gregory, deceased. In the third paragraph it pleaded the laches of the plaintiff fin instituting this action, and in the fourth pleaded the statute of limitations. The court sustained a general demurrer to the third and fourth paragraphs of the answer, and overruled that to the first and second, the latter of which, as said before, is a plea of payment to the administrator of the executor.
Without discussing in detail the several interesting questions of pleading suggested in the briefs of coun
A similar question arose in the ease of Maraman v. Trunnell, 3 Metc. (Ky.) 146, 77 Am Dec. 167. There James Caldwell, the administrator of F. Miara
Applying the foregoing principles to the case in hand, we conclude that the sum in controversy having been deposited in the bank to the credit of J. W. Gregory, as executor, places it in the category of unadministered assets of the estate to which it belonged; and, this being true, it follows that thé right to collect it passed to the administrator de bonis non, and not to the administrator of the executor, and the payment to W. O. Goodloe was therefore invalid. The bank had notice, by the fact that the money was deposited to the credit of Gregory as executor, that it did not belong to him, and was so set apart that it did not constitute a part of his estate by being mingled with it, and was bound, therefore, to know that the administrator had no right to it. The deposit of the fund was a demand loan to the bank, and no cause of action arose for it until after demand and refusal; nor, in the absence of a special contract, did it bear interest. Assuming that the denials of the first paragraph of the answer placed in issue the allegation that the money in question belonged to the estate of Francis Clark, Sr., deceased, the court should have sustained the demurrer to the plea of payment to the administrator of J. W. Gregory, and tried out the question whether the money did or did not belong to the estate of Francis Clark, Sr., and awarded jndg
The judgment is reversed for proceeding's consistent herewith.