Lead Opinion

Opinion op the court by

CHIEF JUSTICE PAYNTER

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 *969a 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 *970to the estate. If the parties are required to appeal from the order of the county court to have it corrected, then much expense and delay will follow such litigation. We do not adjudge that the appellant is entitled to qualify as the personal representative of the estate, but, being a kinsman, he has such interest as enables him to prosecute this appeal.

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

Judge Hobson.

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 *971best manage the estate.” Section 3896. “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, or to any other person, in the discretion of the court. If a will shall afterward he produced and proved, the administration shall cease, and the court may proceed to grant a certificate of the probate thereof, or, in the proper case, letter of administration, with the will annexed.” Section 3897. “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 months from the death of the decedent, that no one will qualify as executor or apply for administration; and shall also confide to said public administrator and guardian the care and control of the1 persons and estates of all minors, in case it shall appear that such minor hath no testamentary guardian, and no one will apply for or •serve as such by the appointment of the court.” Section 3905.

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 *972be void;” and the fact that no such qualification is added to section 3896, 3897, or 3905 is evidence that the Legislature did not intend the 'same rule to apply. In construing these sections it must be borne in mind that they have passed, through the hands of three sets of revisers, and been readopted by the Legislature in three revisions of the statutes, and that they express, therefore, a clearly-defined legislative purpose.

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 *973orders of the county court under these sections are void if made before the time fixed by the statute would be proper if the county courts, in matters of administration, were courts of limited or special jurisdiction. On the contrary, it is well settled that in such matters the county courts- are courts- of general jurisdiction, and that their judgments are entitled to the same respect in these- matters as the judgments of the circuit courts of the State. Jacobs’ Adm’r v. Railroad Co., 73 Ky., 263; Master’s Ex’r. v. Bienker, 87 Ky., 1 (9 R., 841) (7 S. W., 158. The universal current of authority is that in such matters the judgments of the county courts can not be attacked collaterally unless the person upon whose estate administration is granted was not in fact dead or did not reside in the county. Schouler, Ex’rs, sec. 92; Black, Judgm., sec. 250; Freem. Judgm., sec. 319b. In Taylor v. Hosick, 13 Kan., 518, the probate court issued letters of .administration to a person hot a relative or creditor, contrary to the statute; yet it was-held that the order was not void, and could not be attacked collaterally. The same ruling was made in Kelly v. West, 80 N. Y., 139; Maybin v. Knighton, 67 Ga., 103; Barclay v. Kimsey, 72 Ga., 725; Emerson v. Ross’ Ex’x, 17 Fla., 122; Martin v. Robinson, 67 Tex., 368 (3 S. W., 550). In Tennessee, under statutes similar to ours, letters of administration were granted to the public administrator, within the time fixed by law, and it was contended that they were void. The court held otherwise. It said: “It seems very obvious that the Legislature intended that the parties interested in the estate of an intestate should have-six months within which to apply for administration in the usual way, and that the public administrator should have no right to demand letters until the expiration of that time. It does not follow that the grant of létters within *974. the time would he void, nor is it necessary to make an authoritative ruling on the point in this case. But we are clearly of opinion that the next of kin have the right within the six months to have the estate administered in the ordinary mode, and for this purpose to apply to the court lor a revocation of the letters issued to the public administrator.” Varnell v. Loague, 9 Lea, 158. In Brunson v. Burnett, 1 Chand., 136, the supreme court of Wisconsin held the appointment of one not of kin within the time allowed by law to be voidable. See, also, Ex parte Maxwell, 79 Am. Dec., 62 and notes, 65. The opinion of the court seems to proceed upon the idea that it is a sounder rule to declare the appointment void than to declare it voidable, but this is to substitute the judgment of the court for the judgment of the law-making branch of the government. This can not be done. The court may construe what the Legislature has done, but where a fair construction ends its jurisdiction ceases. The opinion does not attempt to show that the language of the Legislature may . properly be construed to convey the meaning which the court declares to be the law. It is submitted that to do this is to violate the express terms the Legislature has used. No authority is cited by the court to sustain the conclusion it reaches, which is in conflict with all the authorities that I have been able to find. If the order of the county court in this case is void, then the sureties of the public administrator were not responsible for his acts in administering the estate, and sales by him passed no title, for if the order was void he stood as if he had taken charge of the estate without any order of court; and much graver consequences may, it seems to me, result from the rule laid down by the court than from that which the law-making branch of the government has seen prop-*975per after the fullest deliberation, and in three revisions to prescribe. Statutes prescribing the order in which adminis: tration shall be granted are as old as the reign of Edward III. In all the States or nearly all, provision is made for administration by a public officer, and nowhere, so far as I have been able to find, has departure by tlse probate court from the directions of the statute been held to make its order void. It seems to me there is wisdom in common experience, and that the court is not at liberty to ignore the well settled rule on the subject, which presumably was known to the Legislature, and with reference to which the statutes in question were enacted. No principle is better settled than that, in proceedings of courts, time is not essential, and that premature action is not void unless so declared by statute. Johnson v. Logan Co., (23 R., 988) 64 S. W., 634; Whithead v. Mallory, 4 Gray, 180; Murray v. Purdy, 66 Mo., 606; Wilkerson v. Allen, 67 Mo., 502; Snyder v. Markel, 8 Watts, 416.

I therefore dissent from the opinion of the court.