333 S.W.2d 944 | Ky. Ct. App. | 1960
This is an original proceeding in this court wherein the petitioner seeks a writ of mandamus directing Hon. Joseph Bradley, Judge of the Fayette Circuit Court, one of the respondents, to enter an order in an action now pending in his court, and in which the other respondents are involved, requiring an immediate distribution of some $112,000 in funds held in a fiduciary capacity. By virtue of the ruling of this court in Curtis v. Citizens Bank & Trust Co. of Lexington, Ky., 318 S.W.2d 33, invalidating an attempted testamentary trust, the funds intended therefor pass to .petitioner’s wards by intestate succession. An early conclusion of the matter in Judge Bradley’s court has been delayed, however, by a contest over lawyers’ fees, and petitioner seeks to force the release of that portion of the money which exceeds the amounts in contest.
The writ is being denied and the petition dismissed for failure to comply with RCA 1.420(a) requiring that the petition be “accompanied by a memorandum of authorities in support thereof.” But in taking this action we have nevertheless reviewed the record before us and conclude that the petition is without merit. An order has been entered in the Fayette Circuit Court whereby funds may be released to the petitioner for all proper expenses incurred in behalf of her wards in order that they may suffer no- hardship by the delay in settlement. The responses filed herein show bona fide reasons why it may not be advisable or convenient for that court to enforce a piecemeal settlement of the estate, and it is beyond question that the matter rests in the sound discretion of the trial court. Therefore, mandamus will not lie. Childers v. Stephenson, Ky., 320 S.W.2d 797; Fannin v. Keck, Ky., 296 S.W.2d 226; City of St. Matthews v. Smith, Ky., 266 S.W.2d 347; Cadden v. Smith, Ky., 264 S.W.2d 71.
Petition dismissed and writ denied.