Buckner's Adm'rs v. Louisville & N.R. Co.

• Decision Date: 31 May 1905
• Citation: 87 S.W. 777,120 Ky. 600
• Parties: BUCKNER'S ADM'RS v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

87 S.W. 777

120 Ky. 600

BUCKNER'S ADM'RS v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

May 31, 1905

Appeal from Circuit Court, Marion County.

"To be officially reported."

Action by Lucinda Buckner and another, as administratrix and administrator of the estate of Alex Buckner, deceased against the Louisville & Nashville Railroad Company. From a judgment dismissing the petition, plaintiffs appeal. Reversed.

W. S Pryor and H. P. Cooper, for appellants.

W. C McChord and Benjamin D. Warfield, for appellee.

O'REAR J.

Alex Buckner, deceased, was killed, it is claimed, by the negligence of appellee company in the operation of one of its trains. A suit was brought against appellee by Lucinda Buckner and Frank Rice, who sued as administrators of Alex Buckner, to recover from appellee the damages sustained by the estate of the intestate by reason of the destruction of his life. Appellee pleaded in abatement that the plaintiffs, Lucinda Buckner and Frank Rice, had never been the administrators of Alex Buckner; that the order of the county court attempting to appoint them was void because of lack of jurisdiction in that court to make the order when it was made. This plea was based upon the fact that the county court proceeded to make the appointment of the plaintiffs as administrators before the second term of the county court after the death of decedent, when another, to wit, Birdie Buckner, the sole distributee of the decedent, was applying for letters of administration in her own name. It is claimed that section 3896 of the Kentucky Statutes of 1903 limits the right of the county court in selecting administrators of the decedent's estate within the first two months after his death to such of his relations as are next entitled to distribution of his estate, and that the court is without jurisdiction to appoint a stranger administrator until after two terms of the county court have passed after the death of decedent. The case of Underwood v. Underwood, 111 Ky. 966, 65 S.W. 130, is relied on.

The fact was shown that Birdie Buckner was legally entitled to qualify as administratrix of Alex Buckner. See opinion this day delivered in Alex Buckner's Administrators v Birdie Buckner, 87 S.W. 776. But it does not follow that the judgment of the county court appointing Lucinda Buckner and Frank Rice as administrators of Alex Buckner was void. The facts are materially different from the state of case presented in Underwood v. Underwood. ...