Miller v. Swan

• Decision Date: 13 December 1890
• Citation: 91 Ky. 36,14 S.W. 964
• Parties: MILLER v. SWAN et al. SWAN et al. v. FIDELITY TRUST & SAFETY-VAULT CO., (two cases.)
• Court: Kentucky Court of Appeals

14 S.W. 964

91 Ky. 36

MILLER v. SWAN et al.

SWAN et al. v. FIDELITY TRUST & SAFETY-VAULT CO., (two cases.)

Court of Appeals of Kentucky.

December 13, 1890

Appeal from Louisville law and equity court.

"To be officially reported."

PRYOR J.

Mrs Belle Compton died in Jefferson county in February, 1886, at the residence of one T. B. Miller. She left a last will that was admitted to probate in the Hardin county court in the same month and year of her death. Her sole devisee was E. P Ditto, who conveyed certain land devised to him to S. T Hovey to pay certain debts, that of the appellants Swan &amp Brown being among the number. Thomas B. Miller, an appellant in this case, with whom the testatrix lived at her death, asserted a claim against her for board, caring for her in her illness, and for burial expenses. Miller had the will or a copy of it admitted to probate in the Jefferson county court, and the Fidelity Trust & Safety-Vault Company was appointed the administrator, with the will annexed, and then instituted this action to settle the estate as an insolvent estate, and to sell the land to pay the debts of the testatrix. She owned no personal estate, and left no debts except the one asserted by Miller. Ditto, with the trustee Hovey, and Swan & Brown, the creditors of Ditto, were made defendants, and insist that the county court of Jefferson county had no jurisdiction of the probate, for the reason that the county court of Hardin had already admitted the will to probate in that county, and it must therefore be assumed, as county courts have the general jurisdiction in such cases, that the Hardin county court had jurisdiction of the parties and the subject-matter, and that Hardin county was in fact the county of the residence of the testatrix. The testimony as to her place of residence is certainly conflicting, but it is sufficient to say that as both the court below and the superior court, on an appeal to that court, have determined that her residence was in Jefferson county, we are disposed to follow their ruling on this question of fact, and certainly the testimony, we think, warrants such a finding.

It is a well-recognized rule of law that, where a court has no jurisdiction of the subject-matter, its judgment affecting it is void, and a void judgment can be assailed in either a direct or collateral proceeding. Section 28, c. 113, Gen St., provides that "no will shall be received in evidence until it has been allowed and admitted to record by a county court, and its probate before such court shall be conclusive, except as to the jurisdiction of the court, until the same is superseded, reversed, or annulled." It seems to this court that this section of the statute leaves the question of jurisdiction to be made at any time or in any proceeding where it may become necessary to question the validity of the probate, and, as to all other questions, the probate is conclusive until superseded, annulled, or reversed, and this collateral attack as to the validity of the judgment or order of probate...