136 Ky. 266 | Ky. Ct. App. | 1910
Opinion of the Court by
— Reversing.
Sarah A. Watkins, widow of F. G. Watkins, deceased, died in Jefferson county, October 11, 1907, intestate, leaving personal property in which she owned a life estate of the value of $8,000. The property seems to have been held in trust by the intestate’s son,, the appellant, Thomas H. Watkins, and her son-in-law, Dr. Henry W. Pirtle, trustees under the will of F. G. Watkins. They were also executors of the will.
F. G. and Sarah A. Watkins left but two children surviving them, viz., the appellant, Thomas H. Watkins, and Ivie W. Pirtle, wife of Henry W. Pirtle, who are equal devisees under their father’s will, and since the death of their mother equally entitled to the trust estate of which she was the beneficiary during her widowhood, except the sum of $1,000 the will of the father directed should be paid, at the death of the widow, out of the trust estate to his grandson, F. G. Watkins. Shortly after the death of Sarah Á. Watkins, the Jefferson county court, upon the motion of Mrs. Ivie W. Pirtle and without notice to appellant, appointed appellee, H. I. Fox administrator of her
Ky. St. sec. 3896, provides: “The court having jurisdiction shall grant administration to the relations of the deceased who apply 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 adjudge will best manage the estate.” In Buckner’s Adm’r v. Buckner, 120 Ky. 596, 87 S. W. 776, 27 Ky. Law Rep. 1032, this court, in passing upon the right of the daughter of an intestate to administer upon his estate, as against another who had been appointed administrator at the instance of a creditor following a waiver by the intestate’s mother of her supposed right to qualify, said: “Under this statute the relation first in rank as distributee is entitled as a matter of right to administer upon the decedent’s estate, provided such distributee possesses otherwise legal qualifications to act, as for example is a person who is a resident of the commonwealth, and of contractual age and capacity. By the succeeding section, if no such person apply for administration at the second county court from the death of the intes’tate, the court may grant administration to a creditor, or to any person in the discretion of the court. The discretion vested by these sections is, first, to select from the distributees, where there are more than one of the same rank or degree of relation, such one or more as the court shall judge will best manage the estate.
In view of the language'of sections 3896, 3897, Ky. St., and the authoritative construction given those sections by the opinion, supra, it can not be doubted that an order appointing and qualifying a stranger as administrator before the second county court after the death of the intestate is voidable upon motion of a relative having precedence in appointment, provided the latter “possesses otherwise legal qualifications to act.” Young’s Adm’r v. L. & N. R. R. Co. 121 Ky. 483, 89 S. W. 475, 28 Ky. Law Rep. 451; Spayd’s Adm’r v. Brown, 102 S. W. 823, 31 Ky. Law Rep. 438.
. As Mrs. Pirtle by reason of the disability of coverture was disqualified to act as administratrix of her mother’s estate, appellant’s right to qualify as administrator was a preferred one, and therefore superior to that of ail others, unless he is incompetent or morally unfit to be intrusted with the management of the estate. Although,'but for her coverture, Mrs. Pirtle would have had equally with appellant the right to administer her mother’s estate, being thereby disqualified to do so, she was without power to nominate an administrator to the exclusion of appellant who was himself entitled, under the statute, to qualify. 18 Cyc. 91-2; Triplett v. Wells, Litt. Sel. Cas. 49. In Young’s Adm’r v. L. & N. R. R. Co., su
The statements of the affidavits in question in this regard are based wholly upon conjecture. Manifestly appellant is competent to have the management of the estate of the intestate, and it is not to be presumed, in the absence of a reasonable showing to that effect, that it is his purpose in administering it to obtain some advantage of his sister, or involve the estate in needless litigation. As she is equally interested 'with Mm in the estate, the presumption should be indulged, in the absence of proof to the contrary, that Ms management of the estate will redound to her interest as well as his own. Moreover, it will be the duty of the county court in permitting the qualification to require of Mm a good and sufficient bond, and to see that it continues sufficient, and Mrs. Pirtle will be protected by this bond against loss or injury growing out of appellant’s administration of the estate.
Being of the opinion that appellant was clearly entitled to be appointed and permitted to qualify as administrator of Sarah A. Watkins’ estate, and that the county court and circuit court erred in refusing him that right, the judgment of the circuit court is reversed and the cause remanded to that court, that it may require the county court to grant appellant letters of administration as prayed.