111 Ky. 966 | Ky. Ct. App. | 1901
Lead Opinion
Opinion op the court by
Reversing.
The intestate died in McCracken county on February 8, 1901. On the following day the county court of that county miadle an order placing the decedent’s estate in the ■ hands of the public administrator. The appellant, a kinsman of the decedent, though not a distributee, gave notice that he would move the court at the March term following to set aside the judgment placing the estate in the hands of the public administrator. The question here involved is as to the right of the county court to (confide the estate of a deceased person to the public administrator until after the expiration of three months, from his dteat'h, no one in the meantime having applied for letters of administration. The sections of the statute relating to the subject are as follows:
“Sec. 3896. The court having jurisdiction shall grant administration to the relations of the deceased who apply for the same, preferring the 'Surviving 'husband1 or wife, and then such others are next entitled to distribution, •or one or more of them whom the court 'shall judge will best manage the estate.
“Sec. 3897. If no such person apply for administration at the second county court from the death of an, intestate1 the court may grant administration to a creditor, or to any other person, in the discretion of the court. If a will shall afterward be produced and proved, the administrator shall cease, and the court may proceed to grant*969 a certificate of the probate thereof, or, in the proper case, letters of administration, with the will annexed.”
“Sec. 3905. The several county courts of this Commonwealth, in which there is a public administrator and guardian, shall confide to him the administration of the estate of deceased persons in all cases in which, by law, the jurisdiction to grant letters testamentary or administration applies, if it shall appear, after the expiration of three month's from the death of the decedent, that no one will qualify as executor or apply for administration. . . .”
No distributee of the estate applied to the county court to be appointed administrator of the estate. The second county court not having arrived, a creditor of the estate was not entitled to be appointed administrator’ thereof. Section 3897. The Legislature intended (section 3905) that the county courts of this Commonwealth should only place the estates of deceased persons in the hands of the public administrator after the expiration of three months from the death of the decedent, and then in cases where no one will apply for administration. We are of the opinion that the county courts are without jurisdiction to place estates in the hands of public administrators, except under the circumstances provided in section 3905. It is a jurisdictional fact to be shown that the decedent has been dead more than three months, and that no one else has applied for letters of administration. If the county court can place the estate of a deceased person in the hand's of the public administrator under the circumstances in this case, then in every case the county court can, without consulting the distributees, kinsmen, or creditors of the estate, place the estate in the -hands of the public administrator immediately upon the death of the deceased, thus entailing in some instances great expense and loss
The judgment is reversed, with directions that the circuit court remiand the case to the county court for its determination as to who is entitled to qualify as personal representative of the estate.
(Nov. 21, 1901.)
Dissenting Opinion
Dissenting opinion by
The question involved in this ease is whether the order of the county court is void, or merely erroneous, because made prematurely. I can not concur in the conclusion that this renders the order toid, although I concede that the order was made prematurely, and should have been set aside on motion. The question turns en the proper construction of sections 3894-3897, 3905, Kentucky Statutes, which are as follows: “When any person shall die intestate, that court shall have jurisdiction to grant administration on his estate that would have had jurisdiction to probate his will, had he made one.” Section 3894. “Original administration shall not be granted after the expiration of twenty years from the death of the testator or intestate. If so made it shall be void.” Section 3S95. “The court having jurisdiction shall grant administration to the relations of the deceased who aqpply for the same, preferring the surviving husband or wife, and then such others as are next entitled to distribution, or one or more of them whom the court shall judge will
It will he observed that section 3894 is the only one which uses the words, “that court shall have- jurisdiction.” No reference is made to jurisdiction in any of the other ■sections. It will also be observed that section 3895, after providing that original administration shall not he granted after the expiration of twenty years from the death of the intestate, also expressly provides that, if so made, it shall be void. If the Legislature had understood that administration after twenty years would be void because forbidden by the previous part of the section, it would not have added the words, “if so made, it shall
The language of section 3896 is, “The court having jurisdiction shall grant administration to the relations of the deceased who apply for the same, preferring,” etc. The language of 3897 is, “If no such person apply for administration at the second county court from the death of an intestate, the court may grant administration to a creditor,” etc. The language of 3905 is, “The several county courts of the Commonwealth, in which there is a public administrator and guardian, shall confide to him the administration of the estate of deceased persons in all cases in which, by law, the jurisdiction to grant letters, testamentary or administration applies, if it shall appear, after the expiration of three months from the death of the decedent, that no one,” etc. There can- be no sound distinction made between the language of these three sections. If the order under section 3905 is void because made one day before the expiration of three months from the death of the intestate, then the- order under section 3897 will be void if the county court is mistaken as to the date of the intestate’s death, and it should turn out that he died -one day after, and not one day before, the last term of the county court. On the same principle, the order under section 3896 would be void if the court were misled by the «evidence as to whether there was a surviving husband oir wife. The ruling that the
I therefore dissent from the opinion of the court.