194 Ky. 782 | Ky. Ct. App. | 1922
Opinion op the Court by
— Reversing.
If an administratrix who has settled her accounts, paid all the obligations of the estate, delivered all of the residue of the estate to the sole heir and caused her official bond to he cancelled, can institute and maintain an action as administratrix of her decedent to recover money due her intestate upon notes which were in the hands of another as his agent and of which she did not know at the
Until the case of Oldham’s Trustee v. Boston Insurance Company, 189 Ky. 844, 16 L. R. A. 305, there was a dearth of authority in this state on the subject of when an executor or administrator is relieved from liability under his trust and is no longer able to institute or maintain an action in his official capacity for the use and benefit of the estate which he represents. In that case, however, we held that a mere settlement-of a fiduciary did not disqualify him to maintain an action or perform other duties of his office. The different states of the union have statutes governing such matters. While some of them are similar in many of their provisions they differ widely in others. Out of this diversity of legislation on the subject a great variety of judicial construction, opinion and determination has flowed. At common law the duties and obligations of executors and administrators were a continuing trust which was not ended by the mere settlement of the accounts of the fiduciary even though an order was entered at the time by a court of competent jurisdiction confirming the settlement as final if after the entry of such order there were discovered other .assets of the estate unadministered. Some states have changed this rule by statute but Kentucky has not done so. Our statutes provide for the appointment of executors and administrators and prescribe their duties, but there is no provision for their discharge except for. unfaithfulness nor fixing a time when their right to maintain an action for the use and benefit of the estate which they represent shall cease. This being true, the common law rule of holding the trust a continuing one still prevails in this jurisdiction. Although Mrs. Stratton, as administratrix, settled her accounts up to December, 1916, paid the obligations of the estate and turned over to the sole heir all of the remaining assets of the estate known to her at that time, and attempted to cancel her official bond, she was not finally discharged or otherwise incapacitated as administratrix. Granting all the facts averred in the pleading concerning the cancellation of the bond of the administratrix, it is- not shown that she was relieved on her bond. Indeed there was no direct order providing for her discharge. Her settlement did not terminate her trust
Judgment reversed.