Caldwell's Adm'r v. Hampton

• Decision Date: 20 October 1899
• Citation: 53 S.W. 14
• Parties: CALDWELL'S ADM'R et al. v. HAMPTON. [1]
• Court: Kentucky Court of Appeals

53 S.W. 14

CALDWELL'S ADM'R et al. v. HAMPTON. ^[1]

Court of Appeals of Kentucky.

October 20, 1899

Appeal from circuit court, Bath county.

"Not to be officially reported."

Action by Mary F. Hampton against James Caldwell, administrator of Ephraim Caldwell, and others, for a settlement of the estate of defendant's intestate. Judgment for plaintiff, and both parties appeal. Reversed.

Reuben Gudgell & Son and C. W. Goodpaster, for appellants.

Ed. C O'Rear and Roy G. Kern, for appellee.

PAYNTER J.

Ephraim Caldwell died intestate, and his brother James qualified as administrator of his estate. The appellee, Mary F. Hampton was his sister. The administrator took charge of the estate collected debts, and made a distribution of the principal part of it, and made a partial settlement of his accounts with the county judge of Bath county. The object of this action was to surcharge that partial settlement, and to have the entire estate settled and distributed. The appellee alleged in the petition that the estate of the decedent Ephraim Caldwell, was indebted to her in the sum of $800 with interest thereon from 1881, on what were known as the "Mill Notes," and she sought to have adjudged to her that sum against the estate. She also charges that the intestate had in his lifetime advanced to the brother James Caldwell $7,500, and she sought to have him charged with that sum in the settlement of the estate. All parties interested in the estate were made parties defendant; so the real purpose of the action was the settlement of the estate. In making this settlement of the estate, she sought to have adjudged her claim against it, and to have her brother charged with the alleged advancement. There are numerous questions raised, and many items in the account questioned, but as to such as are not herein mentioned it is sufficient to say that we agree with the judgment of the court below. We are of the opinion that there was but one cause of action, and that was to settle the estate, as we have said; but in order to do that properly, if the allegations of the petition were true, it was necessary for the court to surcharge the partial settlement, allow the claim against the estate due the appellee, and to determine whether or not James Caldwell should be charged with the alleged advancement. It it was adjudged to be proper that he should be, then, of course, he would not have been entitled to any part of the estate until the other heirs were made equal with him in the sum advanced. For the reasons we have given, we conclude that there was no misjoinder of causes of action, and the lower court did not err in its conclusion upon that question. The appellee claims that in 1881 her brother Ephraim sold a sawmill belonging to her, at her instance, for the sum of $800, and that he was to and did invest the money for her benefit, and held it for her. The evidence in the case clearly shows that she was the owner of the sawmill, and that it was sold to Sharp & Barker, in February, 1881, for $800, for which Ephraim Caldwell took two notes ($400 each), payable to himself, bearing interest, and was to hold them in trust for her. It is contended, however, that the statute of limitation bars a recovery of the debt. The contention of counsel for appellants is based upon the idea that Caldwell was simply her agent in the sale of the mill and collection of the purchase money. If this were true, then the statute of limitation would bar a recovery. He was not only her agent to sell the property, but to collect the money, and keep it at interest for her. The trust was a continuing one, and only terminated by the death of the trustee. The court adjudged that the appellee was entitled to $800, with interest thereon at the rate of 8 per cent. per annum from February 1, 1881. The court concluded that she was entitled to 8 per cent. interest on the debt, because there was testimony which tended to show that Ephraim Caldwell had collected 8 per cent. upon the debt. If he collected the entire debt at the rate of 8 per cent. for her, his estate should have been held liable for the sum collected as her trustee, including whatever interest he collected. However, it appears that all the money which was paid upon the notes was to Ephraim Caldwell, and that the balance due on them amounted to about $230, calculating the interest on the debt at 8 per cent. So...