205 Ky. 177 | Ky. Ct. App. | 1924
Opinion op the Court by
Affirming.
' On September 26,1914, C. J. Canady filed his petition in equity in the Daviess circuit court alleging these facts: J. C. Price and W. Q. Adams were a firm doing business under the firm name of ¡Price, Adams & Kirk, and on September 27, 1907, the firm executed to him three notes, each for $1,000.00, payable respectively in four, .five and six months from date, and Price and Adams endorsed on each note a writing signed by them guaranteeing the payment of the notes at maturity. The notes were wholly unpaid. Adams died in October, 1909, leaving surviving him his widow, Grace Tinder Adams, and his only child, Creel Tinder Adams, an infant under fourteen years of age.
"Where a petition contains alternative allegations each alternative must present matter sufficient in law to constitute a cause of action, and if either alternative does not constitute a cause of action a demurrer to the pleading should he sustained. Rogers v. McAlister, 151 Ky. 488. Under this rule the pleading must be construed against the pleader and must be held to allege that the administrator de bonis non had paid over to the distributees the amount in his hands. It is not alleged that the administrator knew of the claims and no facts are alleged showing that he' should have anticipated them. Section 3860, Kentucky Statutes, -is in these words:
“A personal representative may distribute the estate of a decedent nine months after qualification. ’ ’
It is settled that a cause of action accrues to a distributee against the administrator, upon his bond, nine months after his qualification, and that limitation runs against him from that time. Robinson v. Elam, 90 Ky. 300; Baugh v. Baugh, 159 Ky. 320.
The administrator de bonis non qualified in February, 1911. When he made his final settlement in 1913, more than two years had elapsed since his qualification and a cause of action had accrued in favor of the distributees against him. The purpose of the statute is to secure the prompt settlement of decedents’ estates. If for any reason a distribution cannot be made, the personal representative or distributee or any creditor may bring an action in equity for the settlement of the estate. If the administrator failed to make inquiry or failed to use proper diligence to learn the claims against the estate or by fraud or mistake reported that all of the debts were paid when he made his final settlement in the county court, a cause of action then accrued to the creditors on his bond. The creditors could have sued him as administrator six months after he qualified. They did not bring this action against the surety for more than nine years after his final settlement was made. It is an action in equity. Equity aids the vigilant and not those who have slept on their rights. The petition gives no explanation of the unreasonable delay in bringing the suit. Equity will not enforce stale claims. No facts being alleged explaining the long delay in bringing suit against the surety
Section 3858, Kentucky Statutes, provides:
“Every personal representative shall have his accounts settled, and the settlements and vouchers sustaining the same returned to the county court within two years after he qualifies, and as often thereafter' as the court may require, which settlement, when approved by the court, shall be recorded and indexed by the clerk, and the original and the vouchers carefully kept by him in his office.”
The final settlement of the administrator in the county court when confirmed, stands until surcharged as provided by law. An action for this purpose is barred hy limitation unless brought within five years.
The judgment of the circuit court is affirmed on the single ground of laches, and no other question in the case is decided.
Judgment affirmed.