| Ky. Ct. App. | Feb 10, 1920
Opinion of the Court by
Affirming.
The Farmers’ Bank & Trust Company brought suit against itself, as administrator with the will annexed of Mrs. McCallister, H. M. Sthilley and others, to recover on certain notes alleged to have been executed to it by Mrs. McCallister and Stanley. Stanley filed an answer, counterclaim and set-off, pleading that he was principal on one of the notes, and surety for his mother on the other . notes. He further alleged that Mrs. McCallister owned, at the time of her death, a diamond brooch worth $4,000.00, and that the administrator was chargeable with this sum because it had negligently failed to reduce the brooch to its possession, or to recover its value. The trust company filed a reply, controverting the allegations of the answer, counterclaim and set-off, and pleading in 'substance that, before the death of Mrs. McCallister, her heirs, H. M. Stanley, Mrs. Matthews and McClain Stanley took possession of all her property and divided it among themselves; that in this division Mrs. Matthews got the diamond brooch and took it with her to her home in the state of Ohio; that when an effort was made by the administrator to get possession of the brooch, Mrs. Matthews claimed that it had been given to her by her mother in 1899, and since that time she had had possession thereof, claiming it as her own, and she refused to deliver it to the administrator or account for its value; that Mrs. Matthews had always been a nonresident of the state of Kentucky and the brooch had not been in the jurisdiction of the state of Kentucky since the appointment of the administrator; that it had no way of disproving the claim of Mrs. Matthews that the brooch was hers, and under such circumstances it was not its duty, as administrator, to expend $400.00 or $500.00 in an attempt to recover the brooch. To this pleading H. M. Stanley filed a reply controverting its
After hearing evidence on the question, the commissioner reported that the trust company was liable for the value of the brooch, which he fixed at $4,000.00. On exceptions, the court sustained the ruling of the commissioner and rendered judgment against the administrator for $4,000.00. The administrator appeals.
The first question presented is whether the motion to dismiss the appeal should be sustained. The judgment was rendered on February 23, 1917. On December 23, 1918, a copy of the judgment was filed with the clerk of this court, and an appeal granted. On March 24, 1919, the transcript was filed with the clerk, and the necessary summons issued. It is claimed that the appeal was not prosecuted in time because no summons was sued out within two years, and the transcript was not filed within that time. Neither the suing out of a summons, nor the filing of a transcript within two years, is a prerequisite to the granting of an appeal. Jones v Finnell, etc., 8 Bush 25" court="Ky. Ct. App." date_filed="1871-06-12" href="https://app.midpage.ai/document/joness-v-finnell-7130734?utm_source=webapp" opinion_id="7130734">8 Bush 25; Rush v. Hanley, 30 Ky. L. R. 170, 97 S. W. 126. However, after an appeal has been granted, the transcript must be filed in the office of the clerk at least, twenty days-before the first day of the second-term of this court next after the granting of the appeal. As the judgment was filed, and the appeal was prayed and granted, within two years, and the transcript was filed more than twenty days before the first day of
With respect to the diamond brooch, for the value of which the trust company was held liable, the evidence in behalf of the trust company is as follows : Following its qualification as administrator with the will annexed of Mrs. McCallister, it learned that H. M. Stanley, McClain Stanley and Mrs. Matthews, legatees under the will and the heirs at law of Mrs. McCallister, had previously divided their mother’s estate between them, and that each was in possession, of certain personal property. It made demand on these -persons for the return of the property which they had obtained from the estate. On November 11, 1914, it addressed ,to Mrs. Matthews, who lived at-Hillsboro, Ohio, a letter enumerating the articles of personal property, including the brooch, which, it had been informed, she had in her possession, and requested' the return of the property. ’In reply to its demand, Mrs. Matthews stated that she would like to retain certain items of personal property, other than the brooch, which she had received from the estate, on account of their sentimental value, and would be willing to pay their appraised valuation. She further stated that the brooch had been given her in the year 1899, and that she had kept it in her possession until-her mother had become so afflicted with rheumatism that she could not wear her rings, at which time she begged her mother to take the brooch and wear it and enjoy it so long as she lived, which she did. She also gave the names and addresses of two witnesses who could substantiate her statement. Mrs. McCailister’s will provided that the brooch should go to Mrs. Matthews, one diamond ring should go to McClain Stanley and another diamond ring to H. M. Stanley. Mrs. Matthews -stated in her letter that Mrs. McCallister’s will was nothing more than a memorandum of her.wishes, as her mother had given away many, of the articles enumerated in the will, and others had been sold and her mother had used- the money. McClain Stanley testified that the diamond ring, which was left to him by his mother’s will, had been given to him by his mother a year and a half before her death, but that he had given it back to her to keep for him, and that she' had it at the time of her death.' "When asked where the
On the other hand, the facts relied on by appellee are as follows: The will itself bequeathed the diamond brooch to Mrs. Matthews. The report of the appraiser shows that the brooch was not on hand so that it could be appraised. The brooch was in the possession of Mrs. McCallister at the time of her death, and belonged to her. H. M. Stanley gave the administrator a list of the personal property owned by his mother, and included in the list was the brooch. F. J. Pentecost notified the trust company that Mrs. Matthews had the brooch, and that it was worth enough to pay all of the debts against Mrs. McCallister’s estate; that the brooch was given to Mrs. Matthews in the will, but that Mrs. Matthews took title until the debts were paid. He further told the trust company that Mrs. McCallister had property in Henderson county, and that if it brought suit to subject the
“I notice in your appraisement Mrs. Matthews is •claiming the diamond brooch as her own, upon the idea that it was given to her by her mother prior to her death. Evidently this is a mistake. My information is that this brooch, together with several other very valuable'jewels, were carried by Mrs. McCallister in a chamois skin bag .around her neck and that Miss Lewis, the trained nurse who attended her, took them from around her neck after the breath of life had left her body. I would suggest that you confer with Miss Lewis as to the truth of this statement and as to the basis of any action you may care to take; it seems to me, as administrator of this estate, it is your duty" to get possession of all this property at the earliest possible moment for the protection of all parties in interest.”
The trust company was also advised in this letter that Mrs. Matthews had property in Henderson county, out of which the claim could be made if the brooch itself was not surrendered. About the same time, H. M. Stanley advised the trust company that Mrs. Matthews had property in Henderson county, which was to be sold on that day. It further appears that the land was sold and the proceeds of the sale amounted to $6,858.67.
The trust company insists that the facts are not sufficient to show liability. The argument in its behalf is as follows: It had reason to doubt the statement of H. M. Stanley that the brooch belonged to his mother, in view of the fact that he had stated that his mother’s indebtedness amounted to only $1,800.00, and he had subsequently asserted a claim of $5,500.00 against her estate, and to place reliance upon Mrs. Matthews’ statement that the brooch had been given to her several years before her mother’s death, in view of the fact that she was permitted to take the brooch without objection. Under these- circumstances, the right of the estate to recover the brooch was so doubtful that the trust company did not believe that it could truthfully swear that the claim was just and ought to be paid, which would have been necessary in order to levy an attachment against Mrs.
Judgment affirmed.