Bybee's Ex'r v. Poynter

• Court: Kentucky Court of Appeals
• Writing for the Court: NUNN, J.
• Citation: Bybee's Ex'r v. Poynter, 117 Ky. 109, 77 S.W. 698 (Ky. Ct. App. 1903)
• Decision Date: 16 December 1903
• Parties: BYBEE'S EX'R et al. v. POYNTER.

77 S.W. 698

117 Ky. 109

BYBEE'S EX'R et al. v. POYNTER.

Court of Appeals of Kentucky.

December 16, 1903

Appeal from Circuit Court, Barren County.

"To be officially reported."

Action by A. E. Poynter against William Bybee's executor and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Underwood & Williams, for appellants.

Luther James, for appellee.

NUNN J.

It appears that R. D. Bybee was on the 3d of January, 1880 appointed public administrator and guardian for Barren county, Ky. and thereupon executed a bond as such, containing the usual covenants, with William Bybee, his father, and Clinton Bybee, his brother, as sureties. After the execution of this bond, and in the same year, R. D. Bybee received as such guardian $190.13 belonging to the appellee, who was then an infant, and arrived at the age of 21 years in the month of June, 1891. She within 2 or 3 years after that married one Poynter. Her former name was Kinslow. In the month of October, 1891, her guardian made a settlement with the county court, and it was ascertained that he then was indebted to appellee in the sum of $248. R. D. Bybee then gave her a mortgage on two mules to better secure this sum to her. Appellee enforced this mortgage lien in the year 1892, and obtained a judgment against her guardian for this sum of $248, with interest, and enforcing the lien. The mules were sold; and, after paying the costs of the suit, she received of the proceeds $85. She further received from her guardian in 1898 one mare at the price of $50. Appellee in November, 1902, instituted this action upon the guardian's bond, to secure the balance due her against R. D. Bybee, public administrator and guardian; R. D Bybee, executor of the will of Wm. Bybee, R. D. Bybee, Clinton Bybee, and George Bybee. William Bybee, one of the sureties on this bond, died in the year 1885. By his will he nominated his sons R. D. Bybee and Clinton Bybee his executors, and, after making provision for his wife, Anna Bybee, he directed that the remainder of his estate be divided equally between his three sons, R. D., Clinton, and George Bybee. It appears that George Bybee, under this will, secured from the executors about $800 about the year 1888. Wm. Bybee, by his will, devised to his wife, Anne, for her life, a house and lot in the town of Glasgow, Ky. and at her death it was to go to his three sons herein named, and directed that his executors, at the death of their mother, sell this property, and divide the proceeds equally between themselves and their brother George. Their mother died in the year 1898. Appellee, in her petition, alleged the date of the death of William Bybee; the appointment of his executors in the year 1885; that George Bybee, as devisee, had received of the personal estate of his father more than $300--and described this house and lot in Glasgow, Ky. for the purpose of obtaining a lien on it, and enforcing appellants' liability as devisees under their father's will, as provided by sections 2084, 2089, Ky. St. 1899. The appellants answered, and denied the liability of the sureties of R. D. Bybee on this bond, and interposed the plea of the statute of limitations. Appellee replied, denying that they were released by such statute, and alleged that George Bybee had, since long before her cause of action accrued, been a nonresident of the state of Kentucky; that his place of abode was out of this state; and that for this reason she was obstructed and hindered in bringing and prosecuting her action against him. The court rendered judgment against all the appellants for the debt, and adjudged that appellee had a lien on George Bybee's interest in the house and lot at Glasgow, and enforced same, and stated in the judgment that it appeared that this house and lot had been sold in an action by the executors, and the proceeds of the sale were ordered to be paid to the master commissioner. It was further ordered that the two actions be consolidated, and, when the proceeds of sale were collected, the commissioner was ordered, out of George Bybee's one-third interest, to pay appellee's debt, interest, and costs.

Appellee moved to dismiss this appeal, claiming that the principal of the judgment is less than $200, and that for that reason this court has not jurisdiction. This appeal is from a judgment enforcing a lien on real estate, and this court has jurisdiction. See the case of Fowler & Guy v. Pompelly (Ky.) 76 S.W. 173, and cases therein cited. Section 2521, Ky. St. 1899, says that the right of action upon the official bond of a guardian shall not be deemed to have accrued before the ward attains the age of 21 years. Section 2550, Ky. St....