113 Ky. 1 | Ky. Ct. App. | 1902
Opinion of ti-ie coubt by
Reversing.
This is an appeal from a judgment of the Jefferson circuit court, construing so much of section G of the Kentucky Statutes as relates to the distribution of the proceeds of a judgment recovered in a suit under that' .section. The facts which gave rise to the litigation are as follows: The will of Patrick O’Malley was duly probated by the county court of Jefferson county on the 21st 'of August, 1895. Decedent owned at his death a piece of real estate in the city of Louisville worth about $1,500, which he devised to his wife during her life, and at her death to Michael John McLean in fee. The executor named in the will having declined to serve as such, the Louisville Trust Company veas appointed administrator with the will annexed, and duly qualified under the appointment. It therefore instituted an action under section G of the Kentucky Statutes to recover from the Union Cement and Lime Company damages for the death of its intestate, which it alleged had been caused by the wrongful act of the company. This proceeding resulted in the recovery of $1,500. Out of the recovery, it paid the funeral
legal services rendered the administrator in action No. 8,296, Jas. Rurke, etc. v. Louisville Trust Co., Administrator of Patrick O’Malley, said action being a suit to break and .set aside1 the will of said O’Malley, $200.00. (3) Fee allowed J. M. Chatterson, guardian ad litem of Michael John McLean,
from an injury inflicted by the negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporation and persons so causing the same. Until otherwise provided by law, the action to recover such damages shall in alii cases be prosecuted by the personal representative of the deceased person. The General Assembly may provide how the recovery shall go and to whom belong, and until such provision is made the'sameshall form part of the personal estate of the deceased person.” Under this section of the Constitution, the proceeds of the recovery would be applied, first, to the payment of the debts of the deceased, including cost of administration, and would then go as provided by the general statutes of descent and distribution. But, pursuant to the authority contained in the constitutional provision, the General Assembly saw fit to provide in section 6 that: “The amount recovered, less funeral expenses and the cost of administration and such cost about the recovery, including attorney’s fees, as are not included in the recovery from the defendant, shall be
construction is admissible -which would sanction an evasion of an act, or defeat the obvious intention of the Legislature.” There should have been paid out of the fund of $1,500, recovered under section 6, the cost of administering that particular fund, including attorney’s fees, and cost .incurred in connection with the prosecution of the suit in which the recovery was made, and funeral • expenses. All other expenses incurred in the administration of decedent’s estate should have been paid out of his general estate. We do not think that the widow is entitled to be reimbursed for funeral expenses out of the general estate.
For reasons indicated, the judgment is reversed, and cause remanded for proceedings consistent with this opinion.