79 Ky. 311 | Ky. Ct. App. | 1881
delivered the opinion of the court.
On the 28th of November, in the year 1864, Josiah Veachqualified in the county court of Henderson as administrator of Charles Winfrey, deceased, and executed a bond of that
Mrs. Murrell died shortly after the judgment, and her administrator brought the case to this court on an appeal, and it was reversed as to her and remanded.
The judgment was reversed on the appeal of Mrs. Murrell on the ground that the amended petition filed in vacation was in the name of the heirs of Winfrey, or a portion of them, to enforce a judgment against her as the devisee of Dugan, who was the surety of Veach, when that judgment was in the name of McAllister, the receiver; that the receiver must prosecute the action to enforce that judgment and not the heirs, and that as to the judgment for $5,871 for funds not embraced by the original judgment, no recovery could be had against the sureties until all the parties in interest were before the court. On the return of the cause the receiver, McAllister, was substituted, at his own instance, against the objections of the appellants, to the rights of the heirs of Winfrey, and was permitted to prosecute the action not only for the judgment obtained, but for the purpose of a final settlement. This was done, and it seems to us conferred a right of action on a party who was a stranger to the recovery of the $5,871 judgment, and had no interest whatever in it. There is a manifest distinction in permitting a receiver to collect a judgment already rendered and conferring on him the right to institute an action in which he has no interest, for the purpose of recovering a judgment. The parties were sui juris. They had not asked the court to appoint the receiver to bring the action, and could not have conferred such a right even on petition. He did not ask to be permitted to sue in his name for all the heirs, and if he
It may be said that the commissioner’s report and proof' show that she received some estate, but this testimony is-insufficient to support the judgment for want of the pleading. It is as necessary to state a cause of action as it is to. sustain it by proof. The absence of either prevents a recovery. As this case must be again reversed, it is proper to-notice another question raised by the pleadings below, and which must determine the rights of the parties as the record, now stands. The administrators of Mrs. Murrell pleaded the five years’ statute of limitation. That statute provides: ‘ ‘ A surety for an executor, administrator, guardian, curator, or for a sheriff to whom a decedent’s estate has been transferred, shall be discharged from all liability as such to a distributee, devisee, or ward when five years shall have elapsed without suit, after the accruing of the cause of action, and after the attaining of full age by the devisee, distributee, or ward, but the laches of one shall not affect; the right of the other.”
The statute quoted is found in the Revised Statutes, and; the same provision is contained in substance in the General. Statutes. (Section 3 of article 6, chapter 71, General Statutes, and section 13 of chapter97, Revised Statutes.)
Veach administered on the 28th of November, 1864, andi Dugan, the surety, died on the 23d of January, 1871; so, from the administration of Veach to the death of Dugan, was six years one month • and twenty-six days; and when; you deduct either the six months in which no action can be-brought against an administrator, or the nine months in which he is allowed to distribute, the distributees, if adults;
The statute of 1838, under which the case of Hayden’s •adm’r v. Hayden, 3 Metcalfe, was decided, gave all the distributees the right .to maintain the action within five years after the. youngest of the distributees arrived at age; but under the present statute the infancy of one does not protect or save the rights of the other. . The appellees insist that no action can be instituted against the personal repre.■sentative for a settlement and distribution until two years have elapsed from his qualification. There is a provision ■contained in both the Revised and General Statutes, providing that "after the expiration of two years from the ■time he qualifies as such, the personal representative shall be presumed to have used the surplus assets in his hands, ■and shall be charged with interest from that time, unless he proves that he did not use it or make interest,” &c. The ■only effect of this statute is to fix the liability of the personal representative for interest on the amount he has failed to pay over, and does not regulate the time at which he may be compelled to pay the principal. It is also made his duty to settle his accounts within two years after he qualifies; but ■this has never been held as exempting him from an action in ■equity for a settlement and distribution of the estate, and there is no reason why he should be permitted to retain for two years the principal of the estate, if it is in such a con
The plea is, that the cause of action accrued more than 'five years before the bringing of the action, and five years • after the distributees bad attained the age of twenty-one . years. Both facts must be established, else the defense fails ; ■and if either one or the other does not constitute any part ■of the defense, it was not necessary to plead it. If the . saving as to infancy, as counsel says, had been embodied in ■ another section, the solution of the difficulty would be easy; ■but the saving and limitation are embraced within the same ■ section, and, as was decided by this court in Hayden v. Hayden, 3 Metcalfe, the burden is on the party pleading the . statute.
Then as to the proof, the original plaintiffs all sue as • adults. There is no appearance of the plaintiffs, or any •of them by their next friend, <or any defense made by a ■ statutory or guardian ad litem. In tracing the heirship, the •testimony of witnesses advanced in years have necessarily
Judgment reversed, and cause remanded for further proceedings consistent with this opinion, with leave to amend.