136 Ky. 784 | Ky. Ct. App. | 1910
Opinion op the Court by
Reversing.
J. H. Scott brought this suit as. administrator of H. B. Yonng against the Chesapeake & Ohio Railway Company to recover damages for the death of his decedent, who had been killed by one of its trains. The answer contained, besides a traverse, the following plea in abatement: “For answer in the above entitled action the defendants Chesapeake & Ohio Railway Company, Ed Hughes, James Long, and S. R. Muir, deny that the order appointing plaintiff administrator of H. B. Yonng, deceased, was duly made or entered in the Carter county court, or that the plaintiff was thereby, or at all, appointed as such administrator, or that he has duly qualified or given bond as the administrator of the estate of H. B. Yonng, the decedent mentioned in the petition, or that the plaintiff ever did act or is now acting as such administrator.
These defendants say that the said H. B. Yonng died a resident of, and domiciled in, Carter county, Ky., having theretofore made and published his last will and testament, which was duly probated by the Carter county court — the court having jurisdiction so to do — on the 13th day of February, 1905, and ordered to record, and the same is now recorded in
By section 3894, Ky. Stat. (Russell’s Stat. Sec. 3917), administration may be granted on the estate of any'person who “shall die intestate.” By section 3891 (Russell’s Stat. Sec. 3937) if there be no executor appointed by the will, or if the executor fails to qualify, the court may grant administration with the will annexed to the person who would have been entitled to administration if there had been no will. The facts as shown by the record are that on February 13, 1905, the will of IT. B. Young was admitted to probate in the Carter county court, and on the same day the following order was entered: “February 13, 1905. On motion it is ordered that J. IT. Scott be and he is hereby appointed administrator of the estate of H. B. Young, deceased, whereupon he appeared and took the oath required by law together with J. H. Steale, W. J. Rice, and M. W. Armstrong, his surety who entered into and acknowledged bond with the commonwealth of Kentucky, conditioned accord
We are referred to numerous authorities holding that, where a will has been probated, the appointment of an administrator regardless of the executor is void. Schouler on Executors, Sec. 91. But this ease does not fall within that principle. The orders of the .county court made on the same day are to be read together; and when the court made the order probating the will, and followed it with an order appointing-Scott as administrator of the estate, the manifest meaning of the two orders, when read together, is that Scott is administrator with the will annexed. The omission of the words “with the will annexed” was clearly a clerical error, which is apparent from the record itself. In construing the record we must read the whole of it; and, when all the orders of the court are read, it is apparent that this is what the court meant. There was no order appointing an executor, and there is no reason for holding that a mere clerical error like this makes void the order of appointment. The county court did not intend to- grant administration as in ease of intestacy; for lie at the time admitted the will to probate. When he had probated the will, and there was no executor, he had jurisdiction to grant administration with the will annexed.
The presumption is he did his duty, and acted within his jurisdiction. The presumption is not that he intended two orders entered at the same time to nullify each other. Both orders must stand if possible, and, when we supply in the second order after the word “administrator” the words “with the will annexed,” all inconsistency disappears. That this was the intention of the county court there can be no
The case of Ewing v. Sneed, 5 J. J. Marsh. 459, is entirely unlike this case. There the county court of Jefferson was entirely without power to act at all. What the court did there was equivalent to an attack upon the will which had been probated in another court. The will was not before the Jefferson county court. In Ryno’s Exr. v. Ryno’s Admr., 27 N. J. Eq. 522, an executor had been appointed, and after this, there was an order made appointing an administrator; the contest there before the court being between the executor and the administrator as to who was entitled to the fund. In Griffith v. Frazier, 8 Cranch, 9, 3 L. Ed. 471, which is also relied on, the executor was still' in office, and there was an attempt to appoint an administrator. These cases all turn upon the want of power in the county court to appoint an administrator. The county court here had full power to grant administration. The ■ only trouble with the proceeding is that the clerk failed to enter his order in the proper form. What the court meant is apparent. The thing sued for here does not pass -under the will. It is not affected by the will. It is
Judgment reversed, and cause remanded for fur-flier proceedings consistent herewith.
