114 Ky. 298 | Ky. Ct. App. | 1902
Opinion of the court by
— Affirming.
On the 23d day of December, 1893, there came to the hands of B. C. Gardner, administrator de bonis non of the estate of James Earl, deceased, $2,004.11. In January, 1896, D. Yr. Browning, as guardian of two of the infant -children of deceased, instituted a suit against Gardner,
It is the contention of appellants that appellee’s cause of action against the administrator of James Earl accrued, immediately upon his qualification as administrator, or,, at most, within nine months from the granting of such administration, and that, as no suit was instituted upon the bond for a devastavit until more than five years and nine months had elapsed after the accrual of their cause of action, their plea of limitation was conclusive of appellee’s right to recover, and, to support this contention, rely upon the case of Com. v. Hammond, 49 Ky., 62, and Murrell’s Adm’r v. McAllister, 79 Ky., 311. In the 49 Ky. case the question arose under the act of 1838 (3 St. Law, 558), limiting the time of bringing action against sureties, the second section of which provided “that from and after the first day of July, 1838, sureties, their executors, administrators; heirs and devisees, shall be discharged from all liabilities; to distributees, devisees and wards, on administration and guardian bonds, when five years shall have elapsed without suit after the youngest of the distributees, devisees or wards had attained full age.” In construing this statute, it was held that, where the distributees were- all of full age when administration was granted, suit must be brought within five years after the execution of the bond. But the Gen
In so far as the case of Murrell’s Adm’r v. McAllister, 79 Ky., 311, is in conflict with our conclusion as to the time when appellee’s cause of action against the sureties of the personal representative for a devastavit accrued, it is overruled, and the judgment appealed from affirmed.
Petition for rehearing by appellant overruled.